California Appellate Court Dismisses Medical Malpractice Claim Based on Inadequate Expert Declaration

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In a recent case, a California appellate court dismissed a plaintiff’s medical malpractice claim because the expert declaration failed to sufficiently support the plaintiff’s claim. According to the court’s opinion, the plaintiff fell and broke her wrist, and was later referred to an orthopedic surgeon. The orthopedic surgeon put the plaintiff’s wrist in a cast. The cast was removed a few weeks later, but because the plaintiff’s wrist looked slightly malformed, a splint was put on her wrist, and she underwent physical therapy. The plaintiff’s wrist did not improve, and she eventually had two surgical procedures performed by another surgeon to correct the problem.

The plaintiff sued the original orthopedic surgeon for medical malpractice based on the surgeon’s treatment of her broken wrist. She claimed that the surgeon was negligent in failing to perform or recommend surgery on her wrist, rather than placing a cast on her wrist, and that choosing to do so worsened the plaintiff’s injury. The issue before the court was whether the plaintiff provided sufficient evidence on the element of causation based on an expert declaration she submitted in support of her claim.

Expert Declarations in Medical Malpractice Cases

In California, if a plaintiff claim raises the issue of medical negligence, they must produce an expert declaration if the defendant provides an expert declaration. Otherwise, the plaintiff’s case will be dismissed at summary judgment. An expert can provide testimony if the testimony would assist the jury or judge, and if the subject is beyond common experience. To be considered, the testimony in an expert declaration must be admissible if admitted at trial.

The Court’s Decision

The plaintiff submitted an expert declaration from an orthopedic surgeon who specialized in hand surgery. The plaintiff’s expert stated in his declaration that he believed that the surgeon’s conduct caused the plaintiff’s injury. The court held that the plaintiff failed to state the basis for his conclusion or provide any facts to support his opinion. In the report, the expert noted that the defendant surgeon failed to obtain informed consent, failed to do a new X-ray at the initial exam, and failed to adequately monitor the plaintiff’s condition. The defendant’s expert stated that the condition of the plaintiff’s hand was a potential outcome of both treatments, and that placing a cast on the plaintiff’s wrist was a reasonable treatment option permitted under the standard of care.

The court explained that the plaintiff’s expert failed to explain how these failures related to the plaintiff’s injury. For example, the expert did not explain how the failure to do a new X-ray worsened the plaintiff’s injury. In addition, the expert failed to show how the surgery would have improved the plaintiff’s condition, or whether it would have resulted in the same outcome. Therefore, the court decided that the plaintiff’s expert provided a purely conclusory opinion, which could not serve as evidence in support of the plaintiff’s claim.

Contact a Los Angeles Personal Injury Lawyer

If you have been injured by a medical professional, you may not need to bear the financial and emotional burden alone. The dedicated California medical malpractice attorneys at the Neumann Law Group provide comprehensive and trustworthy legal representation in a wide range of cases. Each of our clients receives the personalized attention and dedicated service that they deserve. In addition to our Los Angeles and Orange County locations, we also have offices in Michigan, New York, and Boston. Call 1-800-525-NEUMANN or fill out our online form to arrange a free consultation with a personal injury attorney.

See Related Posts:

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Cell Phone Use Is a Primary Cause of California Distracted Driving Accidents, California Injury Lawyer Blog, January 14, 2019.

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