Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury/personal injury case and its proceedings.)
The Richard Green Declaration is Insufficient To Support Summary Judgment
If the defendant relies upon expert testimony to meet its burden of persuasion, that testimony must meet the standards of admissibility. An expert’s bare conclusion is insufficient to support summary judgment, just as it would be insufficient at trial. In Kelley v. Trunk, 66 Cal.App.4th 519, 78 Cal.Rptr.2d 122 (1998), the appellate court held that an expert declaration was insufficient to support summary judgment. That declaration was remarkably similar to the Willis Declaration in the present action. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.
Kelley held that the declaration of the expert was deficient to support summary judgment. As the appellate court stated, to be admissible the expert had to explain the connection between the recitation of facts gleaned from the medical records and the ultimate opinion:
[A]n expert opinion is worth no more than the reasons upon which it rests. Here, the crucial issues were: What was the nature of the disease or condition that required Kelley’s surgery? Was it brought on by the laceration? What symptoms of this condition reasonably might have been observable at the time Kelley complained to Dr. Trunk of continuing intense pain unmediated by medication? Should a reasonable doctor at this point in time have recognized the possibility of severe complications? If so, why? If not, why not? Would complications of the kind Kelley eventually suffered have become evident any earlier than three or four days after the laceration? Would earlier intervention have mitigated Kelley’s injury? Herndon’s declaration addressed none of these issues. Without illuminating explanation, it was insufficient to carry Dr. Trunks’ burden in moving for summary judgment. 66 Cal.App.4th at 524, 78 Cal.Rptr.2d at 124.
In the case at bar, the Ross declaration has the same deficiencies, because there are no explanations or answers to the analogous questions that would be relevant in this case. Why didn’t defendant Lee recognize the complications earlier? In view of Ms. Jackson’s higher risk, and thus greater dangers to the baby, why was it within the standard of care to wait an additional 22 minutes to check on the labor, after the defendant was plainly aware of the risk of hypoxia (as indicated by the order for 8 liters of oxygen by mask)?
What is the standard of care for responding to a call from a nurse that describes symptoms of fetal distress? According to the defense expert, defendant Lee was called by a nurse about Ms. Jackson’s condition and given an update on the fetal heart pattern. Yet, there is no mention of what the pattern actually showed. In her deposition, the nurse admitted that she provided her description of the pattern. (Depo. of S. Pearce.) She did not provide the objective data (the length of the decelerations, how many seconds it would take to return to baseline, the depth of the decelerations) about the pattern. If the nurse’s explanation did not include enough detail, did the standard of care require defendant Lee to ask for more detail? Was it within the standard of care to rely only upon the nurse’s interpretation, even if it was incomplete? If so, why?
The defense expert admits that the nurse called defendant Lee a second time and reported variable decelerations. The defense expert says these are common, yet asserts that when Lee at last went to the patient she discovered an emergency. The implication, of course, is that defendant Lee did not have to see the patient, but went there anyway. Does this mean that it would have been within the standard of care to ignore the second telephone call too?
The defense expert, in essence, asserts that the defendant met the standard of care, but fails to explain the connection between the standard and her acts and omissions. Without that connection, the defense declaration is merely conclusory and thus inadmissible. There is no explanation of the source of Ross’s standard of care, and a complete failure to apply the facts as recited by him to that standard. (See Part 12 of 13.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.