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/medical malpractice case and its proceedings.)
PLAINTIFF HAS PRESENTED HIS EXPERT DECLARATION WHICH DISPUTES THE DEFENDANT’S EXPERT’S CONCLUSIONS – AND THIS DISPUTE REQUIRES DENIAL OF THE SUMMARY JUDGMENT
Plaintiff’s obstetric and gynecology, John Zee, M.D. has properly presented his opinion in his declaration testimony. Plaintiff’s expert declaration, which disputes the declaration of the Defendant’s expert declaration, requires denial of this motion for summary judgement. Dr. Zee meets all the requirements of expert testimony – including the standard of care as it relates to nurses and physicians:
To qualify a witness as a medical expert, it must be shown that the witness (1) has the required professional knowledge, learning and skill of the subject under inquiry sufficient to qualify him to speak with authority on the subject; and (2) is familiar with the standard required of a physician under similar circumstances; where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than to its admissibility. (Emphasis added.) (Evans v. Ohanesian (1974) 39 Cal.App.3d 121, 128.)
Consequently, Defendant is not in a position to argue the “weight” of Dr. Zee’s testimony; that is the domain of the trier of fact, in this case, the jury. The Plaintiffs have properly presented their expert testimony on standard of care and causation. Defendants’ experts’ declarations are now controverted by the Plaintiffs’ expert who concludes the Defendants’ actions were below the standard of care and also significant contributing factors in the cause of the child’s condition:
And counter affidavits disclosing evidence or inferences reasonably deducible from such evidence of a triable issue of fact require denial of the motion.
(Emphasis added.) (Sesma v. Cueto, supra, 129 Cal.App.3d at p. 113.)
In Sesma, the Plaintiff brought a wrongful death action against the defendant doctor who brought a motion for summary judgment and submitted his declaration. The trial court granted summary judgment. The Court of Appeal reversed holding that counter affidavits disclosing evidence or “inferences reasonably deducible from such evidence” of a triable issue require denial of the motion.
As the Supreme Court explained in D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20, the purpose of the summary judgment procedure is to see “whether the parties possessed the evidence requiring the weighing procedure of a trial.” This Court now has two qualified expert declarations – both in dispute – and the jury should weigh the opinions at trial.
Similarly, Defendants’ expert declaration has now been controverted; a triable issue exists – and not just on the standard of care and causation. (See Part 4 of 5.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.