Opinion
G044574 Super. Ct. No. 30-2009-00118893
10-26-2011
WILLIAM BRUCE VOSS et al., Plaintiffs and Appellants, v. HOAG MEMORIAL HOSPITAL PRESBYTERIAN et al., Defendants and Respondents.
Law Office of Richard A. Harvey and Richard A. Harvey for Plaintiffs and Appellants. Madory, Zell, Pleiss & McGrath and Larry T. Pleiss for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Kazuharu Makino, Judge. Affirmed.
Law Office of Richard A. Harvey and Richard A. Harvey for Plaintiffs and Appellants.
Madory, Zell, Pleiss & McGrath and Larry T. Pleiss for Defendants and Respondents.
In a medical malpractice action, summary judgment was entered in favor of Hoag Memorial Hospital Presbyterian (Hoag) and Dr. David E. Christy, the emergency room doctor who treated patient William Bruce Voss. Hoag and Dr. Christy provided the declaration of an expert medical witness who opined that, "to a reasonable medical probability," neither Dr. Christy nor Hoag personnel had taken any action or failed to take any action that contributed to the injuries Mr. Voss suffered. In response, Mr. Voss offered the declaration of an expert medical witness who opined that it was "entirely possible" that Dr. Christy's failure to perform additional tests the first time Mr. Voss arrived at the emergency room contributed to the injuries.
We agree that Mr. Voss's expert medical witness testimony was insufficient with respect to causation. Furthermore, we reject Mr. Voss's arguments with respect to the court's evidentiary rulings. We affirm.
I
FACTS
Mr. Voss went to the Hoag emergency room on November 23, 2007 at 10:46 a.m. He complained of nausea and epigastric pain. He was seen by Dr. Christy at 12:28 p.m. Mr. Voss told Dr. Christy that the pain had started around 2:00 a.m. He had no vomiting, diarrhea or fever. Dr. Christy performed a physical examination and noted the patient had pain in the epigastrium and right upper quadrant. He ordered morphine, as well as lab work and an abdominal ultrasound. The lab work showed a white blood count of 13.8 and the platelets were low. The ultrasound showed a renal cyst and an echogenic liver.
Dr. Christy saw Mr. Voss again at 3:22 p.m. and found him to be improved. Mr. Voss was given a prescription for Darvocet, and discharged at approximately 3:32 p.m. His discharge instructions stated: "RETURN TO THIS FACILITY (Emergency Care Unit) WITHIN 12 HOURS IF YOUR PAIN HAS NOT TOTALLY AND COMPLETELY RESOLVED." They also advised him to see his private physician within the next three to four days.
Nearly 26 hours later, at about 5:23 p.m. on November 24, 2007, Mr. Voss returned to the Hoag emergency room. He had a temperature of 102.1 degrees. He described intermittent abdominal pain on a level of 10 out of 10. Mr. Voss stated that he had had pain on and off all day since 2:00 a.m. Friday. When examined, his "abdomen [was] firm with right-side tenderness and rebound." His white blood count had risen to 20.0 and an abdominal CT scan showed a perforated appendix.
November 23, 2007 was a Friday.
Mr. Voss was taken in for surgery. The surgeon performed a laparoscopic appendectomy and found "'about 150 to 200 ml of frank pus in the abdomen . . . .'" Mr. Voss remained in the hospital until December 3, 2007, when he was discharged "feeling 'great'."
Mr. Voss and his wife filed a first amended complaint against Hoag and Dr. Christy. They asserted causes of action for professional negligence and loss of consortium arising out of the emergency room treatment of Mr. Voss on November 23, 2007. They alleged that when Mr. Voss went to the emergency room the first time complaining of abdominal pain, Dr. Christy treated him and ordered an ultrasound of the gallbladder. Mr. Voss was discharged after the ultrasound showed no abnormalities. The Vosses further alleged that Mr. Voss's pain increased and he returned to the emergency room the next day. Then a CT scan was performed showing a ruptured appendix. According to the Vosses, Mr. Voss had emergency surgery, was near death, and stayed in the critical care unit until his discharge in December 2007.
In the first amended complaint, the Vosses asserted that the failure to diagnose and treat the appendicitis the first time Mr. Voss went to the emergency room was what resulted in the burst appendix and subsequent complications.
Hoag and Dr. Christy filed a motion for summary judgment in which they contended that Dr. Christy adhered to the standard of care in treating Mr. Voss and that nothing either Dr. Christy or Hoag did or failed to do "was a substantial factor in causing or contributing to [Mr. Voss's] claimed injuries and damages." The motion was supported by a separate statement of undisputed facts which said, inter alia, that: (1) "to a reasonable medical probability, Mr. Voss did not have a perforated appendix when he was seen by Dr. Christy on November 23, 2007;" (2) "to a reasonable degree of medical probability, no conduct or failure to act by [Dr.] Christy caused or contributed to the development and/or progression of any injury alleged to have been suffered by Mr. Voss;" and (3) "to a reasonable medical probability, no conduct or failure to act by the nursing and/or employees of Hoag caused or contributed to the development and/or progression of any injury alleged to have been suffered by Mr. Voss." An opinion to that effect, given by expert medical witness Dr. Jonathan D. Lawrence, was also provided in support of the motion.
The Vosses filed an opposition, in which they asserted that Hoag and Dr. Christy had failed to present admissible facts in support of their motion, and there was a material fact in dispute—whether Dr. Christy had complied with the standard of care. The Vosses stated that their expert witness, Dr. Salvatore A. Pepe, had "concluded that Dr. CHRISTY did not conduct himself within the applicable standard of care."
The court granted the motion for summary judgment. In its order, the court stated: "Defendants' Motion for Summary Judgment is Granted in that defendants present[ed] the declaration of Jonathan D. Lawrence, M.D. which states to a reasonable medical probability that nothing Dr. Christy or Hoag did caused or contributed to Mr. Voss' illness. . . . In response, plaintiffs present[ed] the declaration of Salvatore A. Pepe, M.D. who states: 'In my professional expert opinion, it is entirely possible that the failure of Dr. Christy to perform further tests . . . contributed to the progression of the ultimate injuries suffered by Mr. Voss.' It was incumbent on plaintiffs to provide a competing expert opinion establishing causation to a reasonable medical probability. Evidence of a 'possibility' of causation is insufficient." (Italics added.)
The Vosses appeal from the summary judgment.
II
DISCUSSION
A. Summary Judgment Review:
"Under summary judgment law, any party to an action, whether plaintiff or defendant, 'may move' the court 'for summary judgment' in his [or her] favor on a cause of action . . . or defense (Code Civ. Proc., § 437c, subd. (a)) — a plaintiff 'contend[ing] . . . that there is no defense to the action,' a defendant 'contend[ing] that the action has no merit' (ibid.). The court must 'grant[]' the 'motion' 'if all the papers submitted show' that 'there is no triable issue as to any material fact' (id., § 437c, subd. (c)) — that is, there is no issue requiring a trial as to any fact that is necessary under the pleadings and, ultimately, the law [citations] — and that the 'moving party is entitled to a judgment as a matter of law' (Code Civ. Proc., § 437c, subd. (c))." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
"[I]n moving for summary judgment, a 'defendant . . . has met' his [or her] 'burden of showing that a cause of action has no merit if he [or she] 'has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. . . .' (Code Civ. Proc., § 437c, subd. (o)(2).)" (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.)
See now Code of Civil Procedure section 437c, subdivision (p)(2).
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On review of a summary judgment, we "examine the record de novo and independently determine whether [the] decision is correct. [Citation.]" (Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1149.)
B. Evidentiary Issues:
In support of their motion for summary judgment, Hoag and Dr. Christy submitted the declaration of their expert medical witness, Dr. Lawrence. The Vosses claim that Dr. Lawrence's declaration was unsupported by admissible evidence, and consequently had no evidentiary value. They cite Garibay v. Hemmat (2008) 161 Cal.App.4th 735 in support of their position. As that case makes clear, the summary judgment motion of a defendant in a medical malpractice case must be denied when it is supported solely by the declaration of an expert medical witness who bases his or her opinion on medical records that have not been properly admitted into evidence. (Id. at p. 737.) As the Garibay court concluded, "[a]n expert's opinion based on assumptions of fact without evidentiary support has no evidentiary value. [Citation.]" (Id. at p. 743.)
Dr. Lawrence based his medical opinion on a review of Hoag's medical records of the emergency room visits of Mr. Voss on November 23 and 24, 2007, and Hoag's medical records of Mr. Voss from his admission on November 24, 2007 through his discharge on December 3, 2007. Copies of the medical records were provided in support of the motion for summary judgment, as was a declaration of Rita Dogger, the custodian of records for Hoag.
The Vosses filed evidentiary objections to the declaration of Dr. Lawrence. They claimed Dr. Lawrence's opinions were based on inadmissible evidence. They stated more specifically that "[n]owhere in the statement of facts [was] there a reference to anything other than the hearsay contained within the documents that [were] admittedly in Dr. CHRISTY's/HOAG HOSPITAL's file." In addition to their hearsay objection, the Vosses objected on the basis of lack of proper foundation. The court overruled all of the objections.
The Vosses also filed evidentiary objections to the declaration of Dogger. Again, they objected on the basis of hearsay and lack of proper foundation. And again, the court overruled all of the objections.
On appeal, the Vosses contend the court erred in its evidentiary rulings, on the basis of Evidence Code section 1271, the business records exception to the hearsay rule, and Evidence Code section 1561, having to do with the production of business records.
Evidence Code section 1271 provides: "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
In her declaration, Dogger stated she was Hoag's Director of Medical Records and the custodian of records. She declared in pertinent part: ". . . I have the authority to and do hereby certify that documents marked as Exhibit 'D' and lodged with the Court are . . . true and correct copies of the records from HOAG regarding plaintiff, WILLIAM BRUCE VOSS, filed in support of HOAG'S Motion for Summary Judgment. Said records were under my custody and control. Such records were prepared by personnel of HOAG in the ordinary course of business at or near the time of the act, condition, or event."
The Vosses contend Dogger's declaration was insufficient to bring the hospital records upon which Dr. Lawrence relied within the business records exception to the hearsay rule because her declaration failed to comply with subparagraphs (c) and (d) of Evidence Code section 1271 in five respects. They say Dogger failed to state: (1) the identity of the documents; (2) the mode by which they were prepared; (3) the sources of information, in other words, the identity of those who prepared the documents; (4) the method of preparation; and (5) the time when the documents were prepared. We disagree.
Dogger identified the documents as those marked exhibit D and lodged with the court. We observe that those documents comprise pages 350-980 of the record on appeal. The Vosses cite no authority for the proposition that Dogger was required to separately identify each one of those medical records.
In terms of either mode of preparation or method or preparation, Dogger stated simply that the "records were prepared by personnel of HOAG in the ordinary course of business . . . ." The Vosses cite no authority for the proposition that Dogger was required to give more detail in terms of the way in which hospital records are prepared.
Where the identities of the preparers of the documents are concerned, Dogger declared that the "records were prepared by personnel of HOAG . . . ." Again, the Vosses cite no authority to show that Dogger was required to provide a listing of the identity of each Hoag employee who prepared each one of the medical records comprising over 600 pages.
Finally, as for the time of preparation of the documents, Dogger said the "records were prepared by personnel of HOAG in the ordinary course of business at or near the time of the act, condition, or event." Contrary to the Vosses' assertion, Dogger did address time of preparation—preparation at or near the time of the event, within the ordinary course of business at Hoag.
The Vosses state that Dogger's statements are too vague to demonstrate that the records were reliable or trustworthy. We are not persuaded. "The trial judge is invested with wide discretion in determining whether a proper foundation has been laid for the admission of business records under Evidence Code section 1271. [Citations.] The exercise of that discretion will not be disturbed on appeal absent a showing of abuse. [Citation.] Where the trial court has determined that the foundation laid was sufficient to support the introduction of evidence under the business records exception, and the record reasonably supports this determination, its conclusion is binding on the appellate court. [Citations.]" (County of Sonoma v. Grant W. (1986) 187 Cal.App.3d 1439, 1450.) Such is the case here.
Just as the Vosses assert that Dogger's declaration fails to satisfy the requirements of Evidence Code section 1271, they also complain that, for essentially the same reasons, her declaration fails to comply with the requirements of Evidence Code section 1561. Their citation to section 1561 adds nothing to the analysis.
"Evidence Code section 1560 provides for the means of complying with a subpoena duces tecum for business records. Evidence Code section 1561 provides that the records may be accompanied by an affidavit of the custodian or other qualified witness attesting to the foundational facts . . . . [Citation.]" (People v. Dickinson (1976) 59 Cal.App.3d 314, 319.) Subdivision (a) of section 1561 requires the affidavit to state "in substance each of the following: [¶] (1) The affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records. [¶] (2) The copy is a true copy of all the records described in the subpoena duces tecum . . . . [¶] (3) The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event. [¶] (4) The identity of the records. [¶] (5) A description of the mode of preparation of the records."
The Vosses do not explain why Evidence Code section 1561, pertaining to records produced in response to a subpoena duces tecum, applies in this case. They also do not show that they made any objections in the trial court based on this statutory provision. They have failed to meet their burden to show reversible error.
We conclude that Dr. Lawrence's opinion was supported by Hoag's medical records and that the court did not err in ruling on the Vosses' objections to either Dr. Lawrence's opinion or Dogger's declaration. Consequently, we turn now to whether Dr. Lawrence's opinion was sufficient to satisfy Hoag's burden to show that the Vosses' causes of action had no merit. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.)
C. Medical Malpractice Analysis:
(1) Elements of Medical Malpractice
The plaintiff in a medical malpractice case "must establish the following basic elements: '(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.' [Citations.]" (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-702.)
(2) Standard of care
"The standard of care in a medical malpractice case requires that medical service providers exercise that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar circumstances. The standard of care against which the acts of a medical practitioner 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, unless the conduct required by the particular circumstances is within the common knowledge of laymen. [Citation.]" (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215.)
Here, Dr. Lawrence opined that, to a reasonable medical probability, Dr. Christy performed within the standard of care, "with exception to the slight anemia, wherein [Dr.] Christy should have done a rectal examination to determine if the slight anemia was related to active gastrointestinal bleeding. However [Dr.] Christy's evaluation was timely, complete, and consistent with the complaints expressed by Mr. Voss. At no time in the ED at Hoag on November 23, 2007 did Mr. Voss express a complaint of pain in the right lower quadrant which would have required [Dr.] Christy to consider appendicitis and other further diagnostic measures. His selection of diagnostic tests met the standard of care required of emergency physicians practicing in Southern California as they addressed Mr. Voss's complaints and physical findings of pain and tenderness in the epigastrium and right upper quadrant. [Dr.] Christy's decision not to order CT imaging of the abdomen was well within the standard of care."
However, Dr. Pepe, the Vosses' expert medical witness, opined that Dr. Christy did not perform within the standard of care. In his declaration, Dr. Pepe declared: "6. It is my professional expert opinion . . . that to a reasonable medical probability, Dr. Christy did not comply or adhere to the standard of care then applicable for an emergency physician examining a patient who presents with abdominal pain. I concur with Dr. Lawrence's opinion wherein he stated that Dr. Christy should have done a rectal examination . . . . Further, in my opinion, given the severe sharp pains, it would have been more appropriate to have ordered a CT exam of the area in question which in my opinion would assuredly have identified the seriousness of the problem that Mr. Voss was experiencing with his appendix. . . . Additionally, it is clearly a deviation from the standard of care to not have performed a CT of the abdomen and pelvis when a patient presents with abdominal pain ranking it 7 out of 10, an elevated WBC, Anemia and no rectal exam to see if that patient is bleeding in his intestines. Therefore, it is my professional expert opinion the selection of diagnostic tests by Dr. Christy did not meet the standard of care required of him or emergency physicians practicing in the Southern California area."
Given the competing declarations of Dr. Lawrence and Dr. Pepe with regard to a breach of the standard of care, the Vosses maintain that the granting of summary judgment was improper. They say there was a triable issue of material fact as to whether Dr. Lawrence violated the standard of care.
It is true that "[w]hen 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.]" (Munro v. Regents of the University of California (1989) 215 Cal.App.3d 977, 985.) Here, the Vosses did indeed provide conflicting expert evidence on compliance with the standard of care. However, that is not the end of the analysis and not the dispositive point.
It is also true that "[a] defendant moving for summary judgment must either negate a necessary element of the plaintiff's case or establish a complete defense. [Citation.]" (Munro v. Regents of the University of California, supra, 215 Cal.App.3d at p. 983.) Hoag and Dr. Christy only needed to show that the Vosses could not establish any one of the elements of the cause of action. Thus, even if Dr. Christy had breached the standard of care, the Vosses could not establish a cause of action for medical malpractice unless they could also show causation. (See Simmons v. West Covina Medical Clinic, supra, 212 Cal.App.3d at pp. 701-702.) We turn now to that element.
(3) Causation
(a) Declaration of Dr. Lawrence
Dr. Lawrence opined, inter alia, that (1) "to a reasonable degree of medical probability, no conduct or failure to act by [Dr.] Christy caused or contributed to the development and/or progression of any injury alleged to have been suffered by Mr. Voss," and (2) "to a reasonable medical probability, no conduct or failure to act by the nursing and/or employees of Hoag caused or contributed to the development and/or progression of any injury alleged to have been suffered by Mr. Voss." (Italics added.)
The Vosses, citing Kelley v. Trunk (1998) 66 Cal.App.4th 519 (criticized in Hanson v. Grode (1999) 76 Cal.App.4th 601, 608, fn. 6), contend that this declaration was purely conclusory because it was unaccompanied by a reasoned explanation. As stated in Kelley, "In a medical negligence action 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." (Kelley v. Trunk, supra, 66 Cal.App.4th at p. 521.) In Kelley, the court observed that the expert opinions there did not "present[] evidence concerning the nature of the disease or condition which led to [the plaintiff's] injury, the symptoms or indications which usually precede it, or when and how they usually appear." (Id. at pp. 522-523.) It stated "an expert opinion is worth no more than the reasons upon which it rests." (Id. at p. 524.)
Unlike the situation in Kelley v. Trunk, supra, 66 Cal.App.4th 519, Dr. Lawrence's opinion, 11 pages in length, described the general symptoms of appendicitis and the timing with which they normally appear, and stated when the standard of care would require a CT scan to be performed. The opinion went into detail on the factual background on which it was based—Mr. Voss's medical records of his Hoag emergency room visits. It also compared the complaints Mr. Voss made, and the symptoms that were observed, on November 23, 2007, as well as the complaints he made, and the symptoms that were manifested on November 24, 2007, to the typical symptoms of appendicitis.
Dr. Lawrence's declaration stated in part: "[I]t is my professional expert opinion . . . that to a reasonable medical probability, Mr. Voss did not have a perforated appendix when he was seen by Dr. Christy on November 23, 2007. It is exceedingly unusual for an inflamed appendix to perforate in less than 24 hours from the onset of abdominal pain. Here, Mr. Voss advised Dr. Christy his pain commenced around 0200 hours on November 23, 2007. It had been 13 hours since the onset of pain when Mr. Voss left the ED with instructions to return if his abdominal pain worsened or was not completely gone in 12 hours."
Dr. Lawrence further declared: "[I]t is my professional expert opinion . . . that to a reasonable medical probability, that Dr. Christy's physical examination on November 23, 2007 did not show any diffuse abdominal pain, rebound, guarding or any other symptoms of peritonitis further supports the appendix had not burst while Mr. Voss was in the ED. The appendix likely perforated sometime after 24 hours from the onset of abdominal pain, sometime in the early morning hours of November 24, 2007. Mr. Voss's complaints of generalized abdominal pain (and not right lower quadrant abdominal pain) when he returned to the ED is consistent with peritonitis. Only [then ] . . . did Mr. Voss complain of right side tenderness and rebound (not the lower quadrant), coupled with significantly elevated white blood cell count and an abdominal CT scan [was] performed that strongly suggested a perforated appendix."
However, with respect to Mr. Voss's complaints on the day Dr. Christy saw him, Dr. Lawrence declared: "At no time in the ED at Hoag on November 23, 2007 did Mr. Voss express a complaint of pain in the right lower quadrant which would have required [Dr.] Christy to consider appendicitis and order further diagnostic measures." Dr. Lawrence concluded, as noted above, that "to a reasonable degree of medical probability, no conduct or failure to act by [Dr.] Christy caused or contributed to the development and/or progression of any injury . . . suffered by Mr. Voss." As the foregoing shows, the declaration was supported by reasons and explanations and was not conclusory.
The Vosses also argue that Dr. Lawrence's opinion as to causation was improper because it was based on his own predicate opinion that the standard of care did not require a CT scan to be performed on November 23, 2007. We are unconvinced. Dr. Lawrence said several things bearing upon the lack of causation. He stated that Mr. Voss showed no signs of appendicitis on November 23, 2007, that at the time of the first emergency room visit it would have been too soon for the appendix to have ruptured based on Mr. Voss's own statements about the time of onset of pain, and that Mr. Voss failed to return to the emergency room within 12 hours as instructed, even though his pain continued.
Finally, the Vosses contend Dr. Lawrence's opinion contained contradictory conclusions. As they observe, Dr. Lawrence declared, on the one hand, that the standard of care did not require the performance of a CT scan on November 23, 2007, but on the other hand, that "[i]f Mr. Voss had returned to the ED with either worse or exactly the same pain, the standard of care [would have] required that a CT of the abdomen be performed which would have revealed the appendicitis." We don't see the contradiction. It was clearly the opinion of Dr. Lawrence that the standard of care did not require a CT scan to be performed until the pain had persisted for a certain number of hours. Mr. Voss was instructed to return within 12 hours if his pain persisted, but he failed to do so.
(b) Declaration of Dr. Pepe
While Dr. Lawrence opined that "to a reasonable degree of medical probability, no conduct or failure to act by [Dr.] Christy caused or contributed to the development and/or progression of any injury . . . to . . . Mr. Voss," Dr. Pepe opined "it is entirely possible that the failure of Dr. Christy to perform further tests as described hereinabove contributed to the progression of the ultimate injuries suffered by Mr. Voss." (Italics added.)
However, "plaintiffs cannot recover where there is only a mere possibility the defendant's negligence caused the wrong. [Citations.]" (Simmons v. West Covina Medical Clinic, supra, 212 Cal.App.3d at p. 702.) "In a medical malpractice action, the evidence must be sufficient to allow the jury to infer that in the absence of the defendant's negligence, there was a reasonable medical probability the plaintiff would have obtained a better result. [Citations.]" (Alef v. Alta Bates Hospital, supra, 5 Cal.App.4th at p. 216.) "[T]here exists an obvious distinction between a reasonable medical probability and a medical possibility. [Citation.] There can be many, even an infinite number of, possible circumstances which can produce an injury. But a 'possible cause only becomes "probable" when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury. [Citation.]' [Citation.]" (Simmons v. West Covina Medical Clinic, supra, 212 Cal.App.3d at p. 702.)
Here, Dr. Pepe did not opine that "there was a reasonable medical probability" that, in the absence of Dr. Christy's failure to perform further tests, Mr. Voss "would have obtained a better result." (Alef v. Alta Bates Hospital, supra, 5 Cal.App.4th at p. 216.) He also did not opine that it was more likely than not that the injury suffered was a result of Dr. Christy's actions. (Simmons v. West Covina Medical Clinic, supra, 212 Cal.App.3d at p. 702.)
These omissions from Dr. Pepe's declaration notwithstanding, the Vosses argue that when Mr. Voss went to the emergency room on November 23, 2007, he had an appendix that was about to burst, and that a CT scan would have disclosed that fact but no CT scan was ordered on that date. Had the CT scan been performed on that day, they say, Mr. Voss would not have suffered the injuries he did. They claim Hoag and Dr. Christy offer no "other reasonable causal explanations" for Mr. Voss's injuries. Put another way, they argue that "the chain of events" as described by both Dr. Lawrence and Dr. Pepe "show that logically, it is 'more likely than not'" that had the CT scan been performed on November 23, 2007, the injuries could have been avoided. The Vosses confuse an expert's recitation of facts with an expert's opinion on causation.
"'The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based [on] competent expert testimony.'" (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118.) "Thus, proffering an expert opinion that there is some theoretical possibility the negligent act could have been a cause-in-fact of a particular injury is insufficient to establish causation. [Citations.] Instead, the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause-in-fact of the plaintiff's injury." (Ibid.) Dr. Pepe did not opine that, based upon the given chain of events, he was convinced that it was more probable than not that Dr. Christy's actions were a cause-in-fact of Mr. Voss's injury. In short, Dr. Pepe's declaration was insufficient to meet the Vosses' burden with respect to the element of causation.
Despite the well-settled California law on the point, the Vosses urge this court to reject the established standard that causation must be proven within a reasonable medical probability and to adopt instead a more flexible standard as used in other states. They cite numerous out-of-state authorities offering different standards. We decline the invitation to rewrite California law.
(4) Conclusion
Hoag and Dr. Christy presented evidence, in the form of the declaration of Dr. Lawrence, sufficient to meet their burden to show that the Vosses could not establish the element of causation. The burden then shifted to the Vosses to raise a triable issue of material fact on that point. However, the declaration of Dr. Pepe was insufficient for that purpose, inasmuch as his opinion on causation was not was not made "to a reasonable medical probability." Consequently, Hoag and Dr. Christy were entitled to summary judgment on the medical malpractice cause of action.
The Vosses raise no separate arguments with respect to the cause of action for loss of consortium. Therefore, any arguments with respect to that cause of action are deemed waived. (G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 619.) In any event, a cause of action for loss of consortium is based upon the negligent or intentional injury to the other spouse. (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 408.) It necessarily follows that if the cause of action of the injured spouse fails, the cause of action of his or her spouse also fails.
III
DISPOSITION
The judgment is affirmed. Hoag and Dr. Christy shall recover their costs on appeal.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.