California Appeals Court Reverses Lower Court Finding that Medical Malpractice Expert Was Unqualified

The California Court of Appeals for the First Appellate District recently reversed a lower court’s grant of summary judgment for a defendant doctor in a medical malpractice lawsuit, holding that the lower court incorrectly found the plaintiff’s expert was unqualified simply for being licensed outside the United States. Plaintiff Lidia C. Borrayo sued defendant Dr. G. James Avery, alleging he engaged in medical malpractice during the course of her treatment for a condition called thoracic outlet syndrome (TOS). Avery moved for summary judgment, which the trial court granted after sustaining his objection to her sole expert witness’ declaration. On appeal, the plaintiff argued that this expert witness — a physician licensed to practice medicine in Mexico — was qualified to provide an opinion about the standard of care to which the defendant was held.

For several years, Borrayo worked for eight to 10 hours a day in silk-screen production. The work involved repetitive motions, such as pushing her right arm back and forth and lifting fabric up and down, in producing 200 canvases per day.

In May 2008, Dr. Abraham Castrejon Pineda, a physician licensed in Mexico, performed orthopedic examinations of Borrayo. In March 2009, Borrayo sought treatment from the defendant. She had longstanding complaints of intense pain in her right shoulder and scapula, numbness and swelling, painful grip, and weakness when raising her right elbow. After examining her and reviewing MRI results, Dr. Avery diagnosed her as having severe TOS on the right side, secondary to repetitive stress at work. He recommended that she undergo surgery to rectify the condition.

In September 2009, Dr. Avery performed this surgery, which involved removing her right first rib. The plaintiff suffered from symptoms for approximately 12 months following the surgery, including pain upon moving her right arm, as well as difficulty in swallowing food.

In August 2011, the defendant referred the plaintiff to Dr. James Kelly, a surgeon who performs clavicular stabilization surgery.

In July 2012, the defendant and Kelly evaluated the plaintiff together and reviewed the results of an MRI. Based on this evaluation, both doctors ultimately concluded the plaintiff was not a candidate for stabilization surgery because her right sternoclavicular joint was “not frankly unstable.”

Borrayo sued in November 2012. In September 2014, the lower court granted the defendant’s motion for summary judgment, concluding that the plaintiff’s proposed expert supplied “absolutely no information about the appropriate standard of care in the United States.” Thus, the court found the plaintiff had failed to meet her burden of production to establish a triable issue of fact regarding whether the defendant had breached the standard of care. Borrayo appealed.

In reversing, the appeals court first explained that in a medical malpractice action, the plaintiff must establish:  (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. Opinion testimony from a qualified expert is typically necessary to demonstrate these elements.

The California evidence code provides that a person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.

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. Here, the trial court sustained the defendant’s evidentiary objections to Pineda’s declaration based solely on its conclusion that the declaration did not demonstrate he was qualified to opine on the practice of medicine in the United States. This, the appeals court concluded, was an abuse of discretion.

While the general rule in medical malpractice cases used to be that the expert have the degree of skill ordinarily possessed by practitioners of the medical profession in the same locality, today, neither the evidence code nor precedent requires that an expert witness have practiced in a particular locality before he or she can render an expert opinion. Here, the expert’s lack of locality was the sole reason the lower court sustained the defendant’s evidentiary objections. Explaining he was otherwise qualified, the court held that the lower court abused its discretion in granting the defendant’s motion for summary judgment for this reason. Thus, the appeals court reversed and remanded.

The medical malpractice lawyers at the Neumann Law Group represent victims of accidents throughout the Los Angeles area. Call us at (213) 227-0001 for a free consultation.

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