Medical Negligence Suit File Against San Francisco Doctors, Part 6 of 11

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)

Defendant Has Failed to Meet His Burden of Proof, the Evidence Presented Does Not Preclude the Trier of Fact from Finding That it Was More Probable than Not That His Treatment Fell below the Standard of Care.

The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) The standard of care in a medical malpractice case is a matter peculiarly with in the knowledge of experts. (Sinz v. Owens (1949) 33 Cal.2d 749, 753.) Thus, expert testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care [citation] unless the negligence is obvious to a layperson. (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.)

To be entitled to summary judgment in his favor, Dr. Lee is required to present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that his treatment fell below the standard of care. (Johnson v. Superior Court (2006) 143 Cal.App.4th 297,305.) Dr. Lee has failed to present any such evidence. In support of his motion Dr. Lee submitted a declaration from vascular surgeon Robert White, M.D. However, Dr. White’s declaration fails to provide any factual basis or explanation for his opinions. Pursuant to Kelley v. Trunk, an expert declaration must provide more than just the ultimate conclusion. (Kelley v. Trunk, supra, 66 Cal.App.4th at p. 524.)

In Kelley v. Trunk, the patient developed serious complications (includ ng neurological damage, scarring and skin grafts) after being treated for a laceration on his arm (Kelley v. Trunk, supra, 66 Cal.App.4th at p. 521.) The patient called the doctor twice after the treatment complaining about his pain, but the doctor never inquired about the patient’s symptoms and did not suggest he return to the emergency room or see a physician immediately. (Ibid.) The doctor moved for summary judgment, submitting the expert declaration of another doctor, which, after relating the patient’s treatment stated, [a]t all times … Trunk acted appropriately and within the standard of care under the circumstances presented. (Id. at p. 522.)

The court in Kelly held the declaration was not admissible since it did not disclose the matter relied upon in forming the opinion, and held it did not establish the absence of a material fact because it was unsupported by reasons or explanation… (Id. at p. 524.) The court said the summary judgment standard is not satisfied by laconic expert declarations wh ich provide only an ultimate opinion, unsupported by reasoned explanation. (Id. at p. 525; see also Wilkinson v. Workers’ Comp. Appeals Bd. (1977) 19 Cal.3d 491, 498, fn 3. [ [T]he expert’s [medical] opinion must rest upon relevant facts and must consist of something more than a legal conclusion. (Citation omitted.)] (See Part 7 of 11.)

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