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 medical malpractice/personal injury case and its proceedings.)
It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.
The Opinion(s) Rendered in Dr. Black’s Declaration Are Not Supported by a Reasoned Explanation and Must Be Rejected
The court stated in Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524, that … an opinion unsupported by reasons or explanations does not establish the absence of a material fact issue for trial, as required for summary judgment. In Kelley, the defendant moving for summary judgment submitted Dr. Herndon’s declaration, which stated (in pertinent part) as follows:
* Plaintiff suffered a laceration to his left forearm and was treated at UCLA Medical Center on November 25, 1994. Plaintiff testified that his friend Ward contacted Trunk later that day because he had not been given a prescription for the analgesic medication that had been provided while in the UCLA Emergency Department. Trunk, who was covering [calls] for Dr. Berkowitz, provided a prescription for Tylenol with codeine (the same medication the patient had previously been given by Dr. Char at UCLA) and advised that [plaintiff] should be sure to follow up with his primary care physician, Dr. Berkowitz, as instructed by Dr. Char prior to leaving the Emergency Room. Plaintiff placed a call to Trunk later that same day and, upon reporting his status, was again advised of the need to follow up with Dr. Berkowitz. Plaintiff had no further contact with Dr. Trunk.
* Plaintiff was seen by Dr. Berkowitz November 28, at which time his clinical presentation was not alarming. He was seen again by Dr. Berkowitz on December 1, 1994, at which time his clinical picture had deteriorated resulting in an immediate referral to an orthopedic specialist the same day. Plaintiff underwent surgery performed by Dr. Thomas on December 2, 1994.
* At all times Trunk acted appropriately and within the standard of care under the circumstances presented.
66 Cal.App.4th at 522.
The court characterized such declarations as laconic expert declarations which provide only an ultimate opinion, unsupported by reasoned explanation. 66 Cal.App.4th at 525. The flaw in the declaration was that it failed to explain the significance of the recited facts. There was nothing to show how the facts demonstrated that the conduct was within the standard of care.
The same flaw exists with respect to the declaration by Dr. Black. There are notable omissions or evasions in Dr. Black’s declaration, and the doctor fails to explain how the facts he recites support his conclusions regarding the standard of care and causation. (See Part 5 of 6.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.