Opinion
B226109
11-07-2011
HECTOR MORA, a Minor, etc., Plaintiff and Appellant, v. ALBERT NASSIR, Defendant and Respondent.
Law Offices of Lionel Ciro Sapetto, L. Ciro Sapetto for Plaintiff and Appellant. Schmid & Voiles, Denise H. Greer, Dena J. Hayden Lambirth for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. GC041713)
APPEAL from a judgment of the Superior Court of Los Angeles County. C. Edward Simpson, Judge. Reversed.
Law Offices of Lionel Ciro Sapetto, L. Ciro Sapetto for Plaintiff and Appellant.
Schmid & Voiles, Denise H. Greer, Dena J. Hayden Lambirth for Defendant and Respondent.
This is a medical malpractice action. The trial court granted summary judgment in favor of the defendant physician, finding that the opinions of plaintiff's expert witness were speculative and did not create a triable issue of fact. The court abused its discretion by giving a generous reading to the laconic and conclusory declaration of the defense expert, while strictly construing the declaration of the plaintiff's expert, thereby turning the summary judgment statute on its head. We reverse.
FACTS
Josefina Mora is the mother and guardian ad litem of Hector Mora. Ms. Mora came to Monterey Park Hospital at approximately 1:00 a.m. on July 26, 2000, in active labor with advanced cervical dilation. Albert Nassir, an on-call obstetrician, arrived at her bedside at 1:30 a.m. Hospital records document that Dr. Nassir encountered shoulder dystocia. He instituted the McRoberts maneuver followed by suprapubic pressure and the Woods maneuver, all of which were unsuccessful. He extracted the posterior arm, rotated the baby to free the anterior arm, and delivered Hector at 1:40 a.m. After delivery, Hector's right arm and hand were flaccid, with no muscle movement. He was discharged from the hospital with a diagnosis of brachial plexus injury due to birth trauma.
According to appellant's expert, shoulder dystocia "is a condition wherein one of the baby's shoulders, anterior, become[s] lodged behind the mother's pubic bone, preventing the baby from easily coming out."
Brachial plexus "is a stretching or tearing injury to the nerve roots at the cervical spine which enervate the upper extremity."
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It is undisputed that shoulder dystocia occurred during Hector's birth, and that Hector suffers continuing palsy, weakness and immobility in his shoulder. The parties' positions differ as to (1) whether Dr. Nassir's treatment of Hector during the birthing process met the standard of medical care and (2) whether the care and treatment provided by Dr. Nassir caused the birth injury suffered by Hector, to a reasonable degree of medical probability. To support their respective positions, the parties presented dueling declarations from board-certified obstetrician/gynecologists.
Scott Serden submitted a declaration on behalf of Dr. Nassir. After reviewing the medical records—and based on his practice, training and experience—Dr. Serden opined that Dr. Nassir complied with the standard of care. The three maneuvers employed by Dr. Nassir to dislodge Hector's shoulder (McRoberts maneuver, suprapubic pressure, and the Woods maneuver) are the accepted measures of care. Dr. Serden opined that none of the acts or inactions of Dr. Nassir caused Hector's shoulder injuries.
Appellant responded with the declaration of James Ingaglio. After reviewing the medical records—and based on his education, training, practice and experience—Dr. Ingaglio opined that Dr. Nassir failed to comply with the standard of care. After acknowledging that Dr. Nassir employed three maneuvers with no success, Dr. Ingaglio stated that Dr. Nassir (1) failed to request additional personnel to assist in the delivery; (2) failed to maintain a timeline, without which it cannot be determined that any of the maneuvers attempted were given a sufficient time to free Hector's shoulder before being abandoned; and (3) failed to attempt application of gentle downward steady guidance. Hector suffered a very serious and permanent shoulder injury. Dr. Ingaglio stated that the "permanency and seriousness of Hector Mora's injury are evidence of unnecessary, excessive traction during delivery." The injury was immediately evident at birth, and despite surgery, Hector's mobility is impaired. Dr. Ingaglio opined that "the inappropriate care and treatment provided by Albert Nassir, M.D. in his management of the shoulder dystocia [ ] caused and contributed to the serious brachial plexus injury suffered by Hector Mora during delivery."
Dr. Nassir objected to the declaration of Dr. Ingaglio, contending that it was conclusory, lacked foundation, and was self-serving with no basis, explanation or reasoning. According to Dr. Nassir, appellant has "failed to show through competent and admissible evidence that Dr. Nassir failed to allow appropriate time for the maneuvers to be effective or that he did not apply gentle downward pressure. . . . Dr. Nassir's testimony will reveal that he did allow the appropriate amount of time to see if the maneuver would work . . . [and] he did apply gentle downward pressure." With respect to Dr. Ingaglio's claim that excessive traction tore Hector's nerve roots, Dr. Nassir objected that this was an attempt to say that because the injury occurred there must have been negligence. Finally, Dr. Nassir objected that there is no indication how his alleged failures caused or contributed to Hector's injury. Dr. Nassir did not submit a declaration in support of his motion: instead, his attorney argued that if Dr. Nassir were called as a witness, he would testify that he allowed the requisite amount of time to elapse between maneuvers and used gentle downward pressure when delivering Hector.
The trial court ruled in favor of Dr. Nassir, finding that Dr. Ingaglio's declaration lacks foundation and is conclusory. Dr. Ingaglio did not explain why additional personnel were required; did not know whether insufficient time passed between maneuvers; the medical records do not say anything about gentle downward pressure; and there are no facts from which one can reasonably conclude that the severity of injury "must have resulted from excessive traction rather than from some other reason likely to occur in a shoulder dystocia delivery. His opinion as to the cause of the extreme injury is pure speculation." The court entered judgment for Dr. Nassir, and this timely appeal followed.
DISCUSSION
Summary judgment is proper if there is no triable issue of fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) To succeed, the defendant must show that a necessary element of the plaintiff's case cannot be established, or there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) To determine the existence of a triable issue of fact, we strictly construe the moving defendant's evidence and liberally construe the plaintiff's evidence, drawing all reasonable inferences in favor of the plaintiff. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838-839; Powell v. Kleinman (2007) 151 Cal.App.4th 112, 121.)
Although review of a summary judgment motion is de novo, the trial court's rulings on evidentiary objections are reviewed for an abuse of discretion. (Powell v. Kleinman, supra, 151 Cal.App.4th at p. 122.).) A court may abuse its discretion when it takes "a very narrow and stingy view" of an expert's declaration offered in opposition to a motion for summary judgment, instead of applying a liberal construction and resolving doubts in favor of the party opposing the motion. (Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1332.) The requirement of a detailed, reasoned explanation for an expert opinion applies to declarations in favor of summary judgment, not to declarations in opposition to summary judgment. (Ibid.)
In a medical malpractice case, the plaintiff must establish: (1) the standard of care requiring the physician to use the same skill, prudence and diligence as other members of his profession; (2) a breach of that duty; (3) a causal connection between the negligent conduct and the injury; and (4) actual loss or damage. (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.) Expert medical testimony is required to establish the appropriate standard of care. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001; Selden v. Dinner (1993) 17 Cal.App.4th 166, 173.)
Dr. Nassir moved for summary judgment on the grounds that his conduct was within the standard of care and did not cause Hector's injuries. Dr. Nassir had to make a prima facie showing that would justify judgment in his favor. (Powell v. Kleinman, supra, 151 Cal.App.4th at p. 121.) Dr. Nassir submitted the declaration of Dr. Serden, who does not even acknowledge the permanent injury that Hector was diagnosed with upon discharge from the hospital—brachial plexus due to birth trauma. Is brachial plexus a normal and expected medical outcome for shoulder dystocia? Dr. Serden provides no answers. In Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 508, by contrast, the defense expert in a summary judgment motion explained that plaintiff's shoulder injury during gall bladder surgery was "'idiopathic,'" i.e., it occurred for no apparent reason in the absence of any negligence, such as evidence of a traction injury or other trauma. (See also Curtis v. Santa Clara Valley Medical Center (2003) 110 Cal.App.4th 796, 802-803 [defense testimony showed that blindness was a known, though rare, risk associated with the plaintiff's spinal fusion surgery].) Despite offering no facts to explain Hector's traumatic injury at birth, Dr. Serden concludes that Dr. Nassir's treatment met the standard of medical care in his community.
Dr. Serden's declaration is conclusory, unenlightening, and insufficient to support summary judgment. Indeed, Dr. Serden's declaration is so devoid of information that the statement of facts in Dr. Nassir's brief relies heavily on the declaration of his opponent, Dr. Ingaglio. Dr. Ingaglio defines the relevant medical terms and explains that Hector's injury was caused by excessive traction. Dr. Serden neither confirms nor denies a link between shoulder dystocia and Hector's brachial plexus injury. Dr. Nassir's claim that he used gentle downward pressure is argument, not evidence: it is unsupported by the medical records or by a sworn declaration from Dr. Nassir in support of his position.
Assuming that Dr. Nassir made a prima facie showing that he met the standard of care, appellant carried his burden of showing the existence of a triable issue of material fact. (Powell v. Kleinman, supra, 151 Cal.App.4th at p. 121.) Appellant offered the declaration of his medical expert, who opined that Dr. Nassir failed to use all available maneuvers, including the use of gentle downward pressure, he failed to apply the maneuvers for long enough, or seek additional assistance. While Dr. Serden offers no explanation for Hector's injury, which was immediately manifest upon delivery, Dr. Ingaglio indicates that Dr. Nassir applied unnecessary and excessive traction, thereby stretching or tearing the nerve in Hector's shoulder.
In our view, it is Dr. Serden's declaration that is deficient, by saying that Dr. Nassir met the standard of care without so much as hinting that there is some reasonable explanation for Hector's injury that does not implicate the manner in which Dr. Nassir pulled Hector through the birth canal. Instead, Dr. Serden offered a "laconic expert declaration[] which provid[ed] only an ultimate opinion, unsupported by reasoned explanation" as to what occurred during Hector's birth. (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 525 [expert did not elaborate upon or explain the basis for his opinion exonerating the defendant physician, thereby precluding summary judgment].) Dr. Serden's declaration is inadequate to support summary judgment because he does not explain how Hector's injuries can be reconciled with Dr. Nassir's treatment.
Dr. Nassir argues that Dr. Ingaglio did not rule out all possible causes of Hector's injury. The trial court, unfortunately, ran with that argument, improperly shifting the burden on summary judgment away from the moving party. It is not appellant's burden to conjecture whether there are other possible reasons for Hector's injury. The burden was on Dr. Nassir to offer some medically plausible reason for the injury, to counter Dr. Ingaglio's identification of excessive traction as the cause of injury. It is pure speculation that there is any plausible reason other than excessive traction for the injury. Certainly, neither Dr. Nassir nor his expert offered a reason for the injury.
An expert declaration need only state that the plaintiff suffered nerve damage and that the care defendant provided caused the injury. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.) "Although the style of the [physician's] declaration is at times a bit obtuse, [plaintiff] is entitled to all favorable inferences that may reasonably be derived from that declaration. These inferences include a reading of the declaration to state that the nerve damage [plaintiff] suffered during surgery was caused by the conduct of defendants, which conduct fell below the applicable standard of care. Nothing more was needed." (Id. at pp. 607-608.)
Here, Dr. Ingaglio stated that Dr. Nassir "failed to follow accepted measures as practiced in the specialty of Obstetrics upon encountering shoulder dystocia. [¶] Based upon my education, training, practice and experience and the review of available medical records, it is my opinion to a reasonable degree of medical probability that it was the inappropriate care and treatment provided by Albert Nassir, M.D. in his management of the shoulder dystocia which caused and contributed to the serious brachial plexus injury suffered by Hector Mora during delivery." This is all that is needed to avert summary judgment on causation.
Dr. Nassir relies heavily on Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108. In that case, the trial court struck an expert's testimony at trial because he failed to explain how bacteria migrated from the peritoneal cavity into subcutaneous tissue without leaving a trail of tissue evidencing the migration, testifying that "'[i]t just sort of makes sense.'" (Id. at p. 1120.) Unlike Jennings, we are evaluating the evidence on summary judgment, which requires us to liberally construe all the evidence and inferences in favor of appellant. And unlike the expert in Jennings, Dr. Ingaglio was not just guessing about the cause of Hector's injury.
The trial court abused its discretion by striking the medical opinion offered by appellant. The court liberally construed Dr. Serden's declaration, while strictly reading Dr. Ingaglio's declaration, thereby turning the summary judgment statute on its head. Incorrectly citing Jennings v. v. Palomar Pomerado Health Systems, Inc., supra, 114 Cal.App.4th 1108, which is not a summary judgment case, the trial court's order indicates that it "carefully analyze[d] plaintiff's expert witness' declaration," but it did not so analyze the defense declaration. Dr. Ingaglio's declaration tracks Dr. Serden's declaration almost exactly, in discussing the factual underpinnings. The difference is that Dr. Ingaglio offers an explanation for Hector's injury (excessive traction), whereas Dr. Serden offers no reason for the injury, or even a statement that permanent injury to the infant is normal with shoulder dystocia.
DISPOSITION
The judgment is reversed. Appellant is entitled to recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J. We concur:
DOI TODD, J.
ASHMANN-GERST, J.