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Date: 01-29-2019
Case Style:
Vistoria Fernandez v. Charles Alexander
Case Number: B283949
Judge: Grimes, Acting P.J.
Court: California Court of Appeals Second Appellate District, Division Eight on appeal from the Superior Court, County of Los Angeles
Plaintiff's Attorney: Tracy Labrusciano and Alexis Galindo
Defendant's Attorney: Ryan P. Deane
Description:
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Plaintiff fell and fractured her left wrist on November 7,
2014. At an emergency room, an X-ray was taken and plaintiff’s
hand was placed in a splint cast. Plaintiff was referred to her
primary physician, who in turn referred her to defendant.
Plaintiff’s daughter accompanied her to see defendant on
November 17, 2014. Defendant examined plaintiff’s wrist and
noted soft tissue swelling, tenderness and decreased range of
motion. Defendant examined the X-rays plaintiff brought with
her; they showed “an impacted distal radius fracture with dorsal
angulation.” Defendant opened the X-ray images on a computer
and described them to plaintiff. He assessed plaintiff with “left
distal radius fracture and left ulnar styloid fracture.”
2
The parties disagree on the extent of any discussion of
surgery as a treatment option, but it is undisputed that
defendant recommended placing the wrist in a cast, and his
physician’s assistant, Daniel Rivas-Tejeda, did so. Plaintiff was
provided with pain medication and instructed to return in three
weeks.
On December 8, 2014, plaintiff went to defendant’s office
and was treated by Mr. Rivas-Tejeda, who removed the cast and
examined the patient’s hand. (Defendant was not present.)
When the cast was removed, plaintiff’s hand looked deformed.
(Plaintiff’s daughter testified that her wrist looked “still swollen”
and “[s]lightly malformed,” “[j]ust a little to the right.”
Mr. Rivas-Tejeda said that “[i]t looks a little off,” and
“mention[ed] that a brace would help with that.”) X-rays were
taken that showed “some callous formation with dorsal
angulation of hand.”1 Plaintiff’s wrist was placed in a “freedom
splint,” physical therapy was prescribed, and plaintiff was
instructed to return in six weeks. Plaintiff underwent physical
therapy visits between December and January 23, 2015 “that
helped somewhat.”
Plaintiff visited defendant’s office for the third and last
time on January 23, 2015. Defendant examined plaintiff and
made notes on the condition of plaintiff’s wrist. (These
observations are undisputed; they are incomprehensible to the
1 Mr. Rivas-Tejeda’s examination “showed positive STS of
the dorsal hand and wrist with decreased range of motion of the
MCP secondary to swelling and immobilization and sensation
was intact.”
3
lay reader, but apparently the condition was not good.)2
According to Norma Fernandez, defendant was “visibly concerned
and a little surprised at how [the hand] was,” and called the office
of plaintiff’s physical therapist. Ms. Fernandez’s impression was
that defendant “wanted to make sure they were doing the right
types of things.” Defendant said “something to the effect that the
way her hand looked wasn’t important, what was important was
getting the function back in her hand.” Plaintiff was instructed
“to use alternating heat and ice and it was noted that if there was
no improve[ment] ORIF [open reduction and internal fixation, a
surgical procedure] could be considered.”
Plaintiff did not return to defendant for any further
treatment. Eight months later, in October 2015, Dr. Milan
Stevanovic performed a surgical procedure involving a bridge
plate,3 and in January 2016 he performed a further procedure to
remove the plate and screws.
2. The Complaint
Plaintiff filed this lawsuit in January 2016. The operative
first amended complaint alleged a single cause of action for
2 Defendant noted: “MCP 2-5 70-80 degrees, PIP 45 degrees
plus or minus, Supination 20 degrees and pronation full.” X-ray
imaging showed “a distal radius slightly medially deviated,” and
defendant noted plaintiff “had stiffness with questionable mild
RSD.”
3 This was “a corrective open osteotomy of the left distal
radius and attempted fixation of the left distal radius osteotomy
site with attempted placement of a hand denervation plate and
fixation with a bridge plate.” Dr. Stevanovic noted that “fixation
could not be achieved on the volar side due to the patient’s soft
and poor bone quality.”
4
professional negligence (medical malpractice) against defendant and Mr. Rivas-Tejeda.
The complaint alleged that the X-rays taken on December 8, 2014
showed “a positive ulnar variance.” Further diagnostic testing in
February 2015 (after plaintiff’s final visit to defendant)
“continued to show a distal fracture but now with displacement
and dorsal angulation. The left ulnar styloid also continued to
show as a fracture,” and “the left wrist now suffered from edema
and ligamentous injury.”
The complaint alleged defendants “failed to inform or
advise[] [plaintiff] that she could suffer and incur a permanent
left wrist injury including the dorsal angulation and ligament
damage as a result of their treatment.” Further, she “did not
consent to [defendants’] poor casting of the left wrist.”
Defendants “breached their legal duty . . . when the left wrist was
casted in an improper manner.”
3. The Motion for Summary Judgment
a. Defendant’s evidence
Defendant moved for summary judgment in March 2017,
contending that defendant’s treatment was within the standard
of care, and that no act or omission on defendant’s part caused or
contributed to plaintiff’s injuries.4
4 Mr. Rivas-Tejeda filed a separate motion for summary
judgment, and a hearing was held on June 5, 2017, a few days
after the hearing on defendant’s motion. Plaintiff filed no
opposition and no appearance was made on her behalf at the
hearing. The court found Mr. Rivas-Tejeda met his burden of
proof “by showing that two elements of that claim (breach of duty
and causation) cannot be established.” Plaintiff makes no claim
of error concerning the judgment in favor of Mr. Rivas-Tejeda.
5
Defendant submitted a declaration from Dr. Charles T.
Resnick, a board-certified orthopedic surgeon specializing in hand
and wrist surgery. Dr. Resnick reviewed plaintiff’s medical
records, the imaging of plaintiff’s wrist, the depositions of
plaintiff and her daughter, and discovery responses to
interrogatories and other discovery requests by the parties.
Dr. Resnick opined that the medical care and treatment rendered
by defendant and Mr. Rivas-Tejeda complied with the applicable
standard of care at all times; that the standard of care permitted
either the performance of surgery and/or casting; that plaintiff
was properly advised of her treatment options; that defendant
supervised Mr. Rivas-Tejeda in keeping with the standard of
care; and that plaintiff did not suffer any adverse complications
during the casting.
Dr. Resnick further opined that “nothing [defendant and/or
Mr. Rivas-Tejeda] did or failed to do caused plaintiff any harm or
injury. The callous formation and dorsal angulation of the
patient’s hand seen on imaging on 12-8-14 was a potential
outcome of both casting and/or surgical intervention. [Plaintiff]
understood that casting her hand could result in continued hand
deformity and the patient agreed to proceed with casting after
receiving an informed consent of her options.”5
b. Plaintiff’s opposition
Plaintiff opposed defendant’s motion, contending that
defendant “failed to supervise Mr. Rivas-Tejeda”; failed to X-ray
5 Plaintiff testified defendant told her that “whether they did
surgery or whether they put [her] hand in a cast, that it [the
hand] would not end up the same,” and when she agreed to the
casting, she “understood at that time that [her] hand would not
be the same, that it would be bent a little bit down.”
6
plaintiff’s wrist on her first visit to his office (instead he used the
X-ray she brought with her that had been done on the day she
fell, 10 days earlier); and “failed to recommend, encourage and
failed to perform surgery to Plaintiff’s left wrist,” instead
ordering a cast to be placed on her wrist, all of which “were a
breach of the standard of care which caused further injury to
Plaintiff’s hand.”
Plaintiff did not file any objections to the admission of
Dr. Resnick’s expert declaration. Plaintiff submitted a
declaration from Dr. Robert Gelb, also an experienced orthopedic
surgeon with a sub-specialty in hand surgery. Dr. Gelb reviewed
various medical records and the depositions of plaintiff,
defendants, and Norma Fernandez (plaintiff’s daughter).
Dr. Gelb observed that defendant “failed to perform a new X-ray
of the left hand,” and opined that the standard of care “requires
that an X-ray be taken when there is a displaced fracture to
assess any movement in the displacement and to provide the
patient with treatment options.”
Dr. Gelb further opined that, “[b]ased on the Plaintiff’s
condition, the standard of care required [defendant] to discuss
and recommend surgical intervention for the open repair with
internal fixation [ORIF] of the left wrist to correct the
displacement. Instead [defendant] ordered that the Plaintiff’s
left hand be casted.” Again on plaintiff’s second visit, when the
cast was removed and X-rays revealed plaintiff’s “angulation and
deformity had worsened,” the “failure to discuss surgical
treatment options was a breach of the standard of care. On
December 8, 2014 [defendant’s] medical records appear to just
accept the deformity to Plaintiff’s left wrist with no attempt to
surgically repair the deformity.” Dr. Gelb concluded:
7
“Based on my review of the above-listed records, and on my
own education, training, and experience, it is my professional
opinion based on a reasonable degree of medical probability that
the care and treatment rendered by both [defendant] and his
[physician’s assistant] Daniel Rivas-Tejeda fell below the
standard of care and caused Plaintiff’s further deformity of her
left wrist. [Defendant] and Daniel Rivas-Tejeda both failed to
obtain an informed consent by the Plaintiff indicating that
[defendant] discussed all of the treatment options, including
surgical intervention. [Defendant] and his [physician’s assistant]
both failed to obtain an X-ray on November 17, 2014 at the initial
examination of Plaintiff’s left wrist when the left wrist had
suffered a displaced fracture with deformity. [Defendant] failed
to monitor the plaintiff’s condition and just accepted the
deformity.”
c. Defendant’s reply
Defendant’s reply to plaintiff’s opposition argued that
deposition testimony from plaintiff’s daughter showed that
surgery was discussed as an option, and Dr. Gelb’s opinion was
“founded on incorrect inferences” and therefore flawed.6
Defendant further argued Dr. Gelb’s causation conclusions were
“unmoored from factual underpinnings.”
Defendant filed a single objection to Dr. Gelb’s declaration,
stating: “Dr. Gelb’s causation opinions fail to create a triable
6 Norma Fernandez testified that defendant “expressed it
[surgery] was one option of two,” but she could not recall “the
specifics.” (She also testified that defendant “more strongly
emphasized a cast option versus the surgery option,” and
ultimately it was defendant’s decision to choose the casting
option, not plaintiff’s decision.)
8
issue of material fact. As such, [defendant] objects to the entire
Declaration.”
Defendant’s objection stated Dr. Gelb’s declaration was
“improper expert witness testimony in that Dr. Gelb has provided
no basis for the opinion he provides within his Declaration.
Thus, Dr. Gelb’s entire Declaration lacks foundation and is
irrelevant for the purpose for which it is being offered, which is
whether or not recommending the surgery on 11-17-14 and/or 12-
8-14 would have changed the outcome. [¶] Dr. Gelb’s
Declaration is conclusory . . . in that he does not state the
reason(s) for which he opined that, ‘to a reasonable degree of
medical probability that the care and treatment rendered by
[defendant] caused Plaintiff’s further deformity of her left wrist.’ ”
And: “Dr. Gelb’s Declaration is conclusory, speculative, and lacks
foundation . . . as he does not provide a basis for his opinions.
Dr. Gelb’s Declaration does not dispute Dr. Resnick’s analysis or
opinions, namely that ‘the callous formation and dorsal
angulation of the patient’s hand seen on imaging on 12-8-14 was
a potential outcome of both casting and/or surgical
intervention’ . . . . Therefore, Dr. Gelb’s conclusory allegations
will not suffice to raise a triable issue of fact as to causation.”
d. The trial court’s ruling
The trial court overruled defendant’s evidentiary objection
to the entire declaration of Dr. Gelb, but granted defendant’s
motion for summary judgment. The court found defendant’s
evidence showed plaintiff could not establish two elements of her
claim – breach of duty and causation. And, while plaintiff
produced sufficient evidence to raise a triable issue of material
fact as to whether defendant complied with the standard of care,
plaintiff did not meet her burden of producing evidence that
9
defendant’s acts or omissions were a substantial factor in causing
plaintiff harm. The court found Dr. Gelb’s opinion on causation
was “conclusory and speculative, and lacks a proper foundation
because his declaration does not explain the basis for, or state
any facts or reasons to support, his opinion on that issue.”
The trial court entered judgment in defendant’s favor, and
plaintiff filed a timely notice of appeal.
DISCUSSION
1. The Standard of Review
A defendant moving for summary judgment must show
“that one or more elements of the cause of action . . . cannot be
established, or that there is a complete defense to the cause of
action.” (Code Civ. Proc., § 437c, subd. (p)(2).) Summary
judgment is appropriate where “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.” (Id.,
subd. (c).)
Our Supreme Court has made clear that the purpose of the
1992 and 1993 amendments to the summary judgment statute
was “ ‘to liberalize the granting of [summary judgment]
motions.’ ” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th
536, 542 (Perry); Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 854.) It is no longer called a “disfavored”
remedy. “Summary judgment is now seen as a ‘particularly
suitable means to test the sufficiency’ of the plaintiff’s or
defendant’s case.” (Perry, at p. 542.) On appeal, “we take the
facts from the record that was before the trial court . . . . ‘ “We
review the trial court’s decision de novo, considering all the
evidence set forth in the moving and opposing papers except that
to which objections were made and sustained.” ’ ” (Yanowitz v.
10
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037, citations omitted
(Yanowitz).)
2. Contentions and Conclusions
Plaintiff contends defendant’s alleged failure to correctly
assess and properly treat plaintiff’s injury “increased the severity
of her displaced fracture at a critical time for surgical
intervention, caused a delay in surgical intervention, and
adversely affected her overall healing and ability to respond to
the later-performed corrective procedures by Dr. Stevanovic.”
Plaintiff contends that defendant “failed to carry his burden of
production on causation,” and even if defendant met that burden,
Dr. Gelb’s declaration “refutes Dr. Resnick’s assertions on
causation.”
We disagree with both contentions.
a. The relevant principles
We begin with a prefatory note. The only issue on appeal
involves the element of causation. The trial court found, and we
agree, that material fact issues existed concerning the standard
of care (breach of duty). For example, testimony from plaintiff
and her daughter disputed defendant’s discovery responses on
the issue whether defendant explained the risks and benefits of
surgery as a potential option for treatment. And, the experts
contradicted each other: Dr. Resnick concluded the standard of
care permitted either the performance of surgery and/or casting,
while Dr. Gelb concluded the standard of care required defendant
“to discuss and recommend surgical intervention . . . to correct
the displacement.” Thus we are left with the causation issue.
The general principles on expert testimony are not in
dispute. As we have said in the past, “[a]n expert declaration is
admissible to support or defeat summary judgment if the expert’s
11
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 v. Nordstrom, Inc. (2010)
186 Cal.App.4th 755, 761 (Bozzi).)
“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, citing
Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493,
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].) “The same rules of evidence that
apply at trial also apply to the declarations submitted in support
of and in opposition to motions for summary judgment.
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.” (Bozzi, at p. 761.)
“The declarations in support of a motion for summary
judgment should be strictly construed, while the opposing
declarations should be liberally construed. [Citation.] This does
not mean that courts may relax the rules of evidence in
determining the admissibility of an opposing declaration. Only
admissible evidence is liberally construed in deciding whether
there is a triable issue.” (Bozzi, supra, 186 Cal.App.4th at
p. 761.)
12
b. Dr. Resnick’s declaration
As indicated earlier, Dr. Resnick opined on the causation
issue, stating: “It is further my opinion that nothing [defendant
and/or Mr. Rivas-Tejeda] did or failed to do caused plaintiff any
harm or injury. The callous formation and dorsal angulation of
the patient’s hand seen on imaging on 12-8-14 was a potential
outcome of both casting and/or surgical intervention.”
Plaintiff contends Dr. Resnick’s opinion on causation was
conclusory, speculative, and “specious at best,” and defendant
“failed to carry his burden of producing evidence demonstrating
that there was no triable issue of material fact as to causation.”
Plaintiff is mistaken.
First, plaintiff did not object to Dr. Resnick’s declaration, or
any part of it, in the trial court. Nor did plaintiff contend in her
opposition papers that defendant had failed to carry his burden of
producing evidence on any issue. Plaintiff merely argued that
from the evidence she recited, “the trier of fact can determine
whether [defendant] acted appropriately or breached his duty
and caused Plaintiff’s injury” by failing to X-ray plaintiff’s wrist
on her initial visit and failing to recommend surgery. As noted
above, this court considers all the evidence “ ‘ “except that to
which objections were made and sustained.” ’ ” (Yanowitz, supra,
36 Cal.4th at p. 1037.) It is thus far too late for plaintiff to object
to Dr. Resnick’s declaration.
Second, plaintiff is in any event mistaken. She complains
that Dr. Resnick “cites to no authority” for the proposition that
the callous formation and dorsal angulation of plaintiff’s hand
was a potential outcome of both treatments (casting and surgery),
and does not explain “the statistical likelihood” of that outcome
with casting and with surgery. But Dr. Resnick is himself an
13
authority on orthopedic surgery, with “extensive education,
training, and experience, [and] years as a practicing board
certified orthopedic surgeon specializing in hand and wrist
surgery.” And we are directed to no authority requiring
statistical studies to support an opinion that is based on an
expert’s extensive practical experience in the relevant field.
Plaintiff also asserts Dr. Resnick’s opinion that “callous
formation and dorsal angulation” was a potential outcome of both
treatments “is irrelevant as a ‘medical possibility,’ ” because
there can be “ ‘an infinite number of[] possible circumstances
which can produce an injury,’ ” quoting Simmons v. West Covina
Medical Clinic (1989) 212 Cal.App.3d 696, 702. So far as we can
see, plaintiff’s assertion is a non sequitur, and her citation to
Simmons in inapt. Simmons discussed the “obvious distinction
between a reasonable medical probability and a medical
possibility” in a wrongful birth case, where it was undisputed
that a particular test would have provided only a 20 percent
chance of uncovering the plaintiff’s risk of giving birth to a child
with Down’s Syndrome. (Ibid. [“[a] mere 20 percent chance does
not establish a ‘reasonably probable causal connection’ [citation]
between defendants’ negligent failure to provide [the test] and
plaintiffs’ injuries”].)
Here, Dr. Resnick opined, based on his extensive
experience as an orthopedic surgeon, that what happened to
plaintiff’s wrist was a potential outcome of both treatments. This
satisfied defendant’s burden to make a prima facie showing that
plaintiff cannot establish that failure to recommend the surgery
option aggravated the injury to plaintiff’s wrist.
14
c. Dr. Gelb’s declaration
That brings us to the pertinent question: did plaintiff
“produce a competent expert declaration to the contrary” (Bozzi,
supra, 186 Cal.App.4th at pp. 761-762) on the causation issue?
While Dr. Gelb was plainly competent to opine on the issue, it is
equally plain that he did not do so in the manner required for the
admissibility of an expert opinion.
“ ‘[W]hen an expert’s opinion is purely conclusory because
unaccompanied by a reasoned explanation connecting the factual
predicates to the ultimate conclusion, that opinion has no
evidentiary value because an “expert opinion is worth no more
than the reasons upon which it rests.” ’ ” (Sanchez v. Kern
Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th
146, 155 (Sanchez).) “Regarding causation, ‘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.)
We have already described Dr. Gelb’s declaration. (See
part 3.b. of the facts, ante, at pp. 7-8.) On the causation issue, he
simply stated that, based on the records and his training and
experience, his opinion, based on a reasonable degree of medical
probability, was that defendant’s care and treatment “caused
Plaintiff’s further deformity of her left wrist.” Dr. Gelb then
refers to defendant’s failure to obtain an informed consent
indicating he discussed all of the treatment options, failed to
obtain a new X-ray at his initial examination of plaintiff’s wrist,
failed to monitor the plaintiff’s condition and “just accepted the
deformity.” None of this explains, for example, how the failure to
15
obtain a new X-ray at the initial consultation caused the further
deformity in plaintiff’s wrist, or how the failure to discuss surgery
at the initial consultation caused the further deformity shown by
the imaging at the second consultation.
Notably, Dr. Gelb does not opine that surgery would have
produced a better outcome. Dr. Gelb’s declaration does not
challenge or even address Dr. Resnick’s opinion that what
happened to plaintiff’s hand (the callous formation and dorsal
angulation) was a potential outcome of both treatments. In short,
Dr. Gelb offered no “reasoned explanation connecting the factual
predicates to the ultimate conclusion” (Sanchez, supra,
8 Cal.App.5th at p. 156), and that is the very definition of a
“purely conclusory” opinion.7
Plaintiff nonetheless contends it is reasonable “to infer . . .
that Dr. Gelb opined that the failure of [defendant] to recommend
surgery” on plaintiff’s first and second visits “were substantial
factors in causing the Plaintiff’s harm.” According to plaintiff, we
may further infer from the worsening of the deformity that it
“could only be remedied by surgical intervention due to the
severity of the fracture.” We may also infer, plaintiff says, that
because the deformity worsened while her wrist was in the cast,
“it is medically probable that another cause of the Plaintiff’s
harm was improper casting.” But Dr. Gelb’s opinion actually
7 Plaintiff points out the trial court found Dr. Gelb’s
declaration on causation was “conclusory and speculative, and
lacks a proper foundation,” and yet the court overruled
defendant’s evidentiary objection based on the same grounds. We
understand the court to have overruled defendant’s objection to
the “entire Declaration” of Dr. Gelb, rather than to particular
portions of it, since the declaration established the existence of
material disputes on the standard of care.
16
says none of those things (except that the deformity had
worsened).
We agree with plaintiff that she “is entitled to all favorable
inferences that may reasonably be derived from [Dr. Gelb’s]
declaration” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607),
and “the rule [is] that . . . we liberally construe the declarations
for the plaintiff’s experts.” (Powell v. Kleinman (2007)
151 Cal.App.4th 112, 125-126; see also Garrett v. Howmedica
Osteonics Corp. (2013) 214 Cal.App.4th 173, 189 [“a reasoned
explanation required in an expert declaration filed in opposition
to a summary judgment motion need not be as detailed or
extensive as that required in expert testimony presented in
support of a summary judgment motion or at trial”].) But these
principles in no way eliminate the need for some form of
“reasoned explanation,” and it remains the case that any
inferences must “reasonably be derived from” the declaration.
Here, the inferences plaintiff suggests cannot “reasonably
be derived” from a barebones statement that defendant’s
treatment “caused plaintiff’s further deformity.” Doing so would
be the antithesis of the principle that an expert opinion on
causation must include “a reasoned explanation connecting the
factual predicates to the ultimate conclusion.” (Sanchez, supra,
8 Cal.App.5th at p. 156.)
Because plaintiff presented no admissible evidence to
controvert defendant’s evidence that causation cannot be
established, defendant’s motion for summary judgment was
properly granted.
Outcome: The judgment is affirmed. Defendant is to recover his costs on appeal.
Plaintiff's Experts: Dr. Robert Gelb
Defendant's Experts: Dr. Charles T. Resnick
Comments: Editor's Comment: This is another example of how very difficult it can be to successfully prosecute a medical malpractice claim.