Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C05-02133
Sepulveda, J.
Appellants Rosemary and Ben Parvizi appeal summary judgment entered in favor of respondents Abraham Hsieh, M.D., and Scott, Hsieh & Associates (the medical group) in their medical malpractice action. They claim that there were triable issues of material fact, and they also raise procedural and evidentiary objections. We affirm.
To avoid confusion, and with no disrespect intended, we refer to appellants by their first names.
I. FACTUAL AND PROCEDURAL BACKGROUND
Hsieh is an otolaryngologist (ear, nose, and throat doctor). On October 9, 2003, Rosemary visited Hsieh’s office complaining about a lump on her neck. Hsieh ordered a CT scan, which was performed one week later, on October 16. The CT scan revealed “a large, well-circumscribed mass/node deep to the left sternocleidomastoid muscle, along the posterolateral margin of the left jugular vein.” The radiology report noted that “[s]urgical excision of the above described mass is suggested.”
Respondents state, without citation to the record, that Hsieh “is a board certified otolaryngologist, head and neck surgeon.” (Cf. Cal. Rules of Court, rule 8.204(a)(1)(C) [factual references shall be supported by citation to the record].) The record on appeal does not contain any declaration from Hsieh, and there is no testimony from him regarding his medical specialty. It is undisputed, however, that Hsieh has such a medical specialty, as appellants also refer to him in their brief (again, without citation to the record) as an otolaryngologist. (Ibid.)
Hsieh discussed the results of the CT scan with Rosemary on October 17, 2003, and recommended to her that a fine needle aspiration biopsy of the mass be performed, which he did on October 22. A pathologist evaluated the tissue from the fine needle aspiration, and issued a pathology report dated October 24, 2003. The report stated that there was “[n]o evidence of malignancy” and that “[t]he appearance is suggestive of branchial cleft cyst, although not diagnostic.” Hsieh testified that when he reviewed the report, he felt that, more probably than not, the mass was a branchial cleft cyst. He also testified that fine needle aspirate is 90 percent accurate, meaning that there was a 10 percent chance that there could be a malignancy.
Hsieh spoke with Rosemary again on October 27, 2003, to discuss the results of the pathology report. He recommended that a surgical excision be performed on the neck mass to prevent it from becoming larger or infected. Rosemary stated that Hsieh did not tell her that the tests that were performed did not rule out the presence of cancer. According to Hsieh’s notes of their conversation, Rosemary told him she would decide and let him know. Rosemary claims that had she been told that excisional biopsy was the only way to rule out malignancy, she would have immediately scheduled surgery.
Instead, Rosemary did not return to see Hsieh until nine months later, on July 26, 2004, complaining about a new lump. Hsieh performed a fine needle aspiration of the new mass in August 2004, and the tissue revealed the presence of malignant cells.
Rosemary switched health care providers, and underwent surgery at the University of California, San Francisco on September 14, 2004. According to the operative report, the postoperative diagnosis was base of tongue cancer. The operative report and a pathology report indicate that a two-centimeter mass was removed from the left base of her tongue, and a biopsy revealed squamous cell carcinoma. The mass at the base of Rosemary’s tongue was believed to be the primary tumor.
Appellants filed their complaint against Hsieh for medical negligence (as to Rosemary) and loss of consortium (as to Ben) on October 5, 2005, later amending the complaint to include the medical group as a defendant. The only allegations as to negligence against respondents were as follows: “At all times relevant to this complaint, DR. HSIEH was Rosemary Parvizi’s physician. DR. HSIEH was negligent in the care and treatment he provided Rosemary Parvizi and this negligence was a substantial factor in causing the plaintiff to suffer economic and noneconomic damages.”
Respondents filed a motion for summary judgment on June 29, 2006. In support of summary judgment, respondents submitted the declaration of Willard Fee, M.D., who is a professor of surgery (head and neck) at Stanford University, and who is board certified by the American Board of Otolaryngology. After reviewing the report of Rosemary’s October 16, 2003, CT scan, Fee stated that, based on his education, training, and experience, a mass with measurements such as the one detected in October 2003 “is, by definition, a N2a tumor if found to be malignant, and constitutes Stage IV cancer.” In other words, it was Fee’s opinion that Rosemary had stage IV cancer as of October 16, 2003, with a metastasis in a single lymph node.
The term “N2a” is not defined in Fee’s declaration. Respondents’ brief on appeal asserts that “every physician dealing with cancer” knows about the cancer classification and “staging” that is established by the American Joint Committee on Cancer. Citing the joint committee’s Cancer Staging Manual (AJCC, Cancer Staging Manual (6th ed. 2002) Pt. II, Head and Neck Sites, p. 25), respondents explain that the term N2a means that Rosemary had stage IV cancer, with the presence of metastasis in a single ipsilateral lymph node.
In Fee’s opinion, it is rare to diagnose a “T1 primary base of tongue lesion” through a physical examination, and he does not believe that the primary base of tongue lesion was diagnosable in October 2003. As to causation, Fee stated: “However, assuming that the base of tongue primary was diagnosable back at that time, based upon my education, training and experience, I can state to a reasonable degree of medical probability that had the base of tongue lesion been diagnosed, had the squamous cell carcinoma been diagnosed, neither the patient’s course of treatment, nor the staging of the cancer would have been any different. Even if the patient had been diagnosed with squamous cell carcinoma back in October 2003, when Dr. Hsieh was initially treating the patient, the patient would have required chemotherapy and radiation therapy and had the mass persisted, required a neck dissection. Moreover, the staging of the patient’s cancer, which was noted to be stage IV cancer upon diagnosis in September, 2004, was already stage IV cancer back in October, 2003, based upon the size of the mass noted on the October 16, 2003 CT scan. Therefore, nothing Dr. Hsieh did, or did not do, contributed to any change in the course of treatment or the staging of the patient’s cancer.” Fee concluded that based on his review of Rosemary’s medical records, and on his training, knowledge, and experience, no act or omission in the care or treatment rendered by respondents “negligently caused or contributed to Ms. Parvizi’s development of squamous cell carcinoma, staging of the cancer, or post-diagnostic care and treatment with chemotherapy, radiation and surgery.”
In opposition to respondents’ summary judgment motion, appellants submitted the declaration of Paul Donald, M.D., a board certified otolaryngologist with the University of California, Davis Medical Center. It was Donald’s opinion, based on his experience and on the “literature and data relating to the growth and spread of base of the tongue tumors/lesions, ” that Rosemary’s tumor was present when she first saw Hsieh. It was his opinion that Hsieh should have palpated the base of Rosemary’s tongue, and that had he done so, “the tongue mass more probably than not would have been detectable.”
With respect to the mass that was detected by CT scan in October 2003, Donald opined that the standard of care applicable to any ear, nose, and throat specialist was to rule out the presence of malignancy. According to Donald: “Confirmation of the presence of left neck mass malignancy at the earliest possible time is required by the standard of care because the chances for survival are directly affected by the number of malignant lymph nodes.” Regarding causation, Donald opined that Rosemary’s chances of recovery would have been better with proper diagnosis, whether or not the mass detected in October 2003 was malignant. Assuming that the lymph node was malignant, only one lymph node was affected in October 2003. He stated that the standard of care required Hsieh to know that when a base of tongue tumor is the primary tumor, and one lymph node is malignant, “the prognosis is very good assuming the mass and the lymphatics in that side of the neck are removed prior to multiple nodes becoming malignant.” If, on the other hand, the primary base of tongue tumor had not metastasized in October 2003 (meaning, presumably, that the first mass was not malignant when it was first detected), according to Donald: “the malignancy would have been confined to the base of the tongue. Assuming this scenario, the prognosis with proper treatment would have been excellent, the lesion would have been removed and metastasis to the neck or other parts of the body would not have occurred.”
Paragraph 13 of Donald’s declaration stated: “With proper diagnosis and treatment in or around October, 2003, Mrs. Parvizi had an 85-90% chance of being completely cured. On the other hand, the prognosis where multiple nodes are malignant is poor. When the base of the tongue tumor was discovered, multiple nodes were malignant. The delay in diagnosing and treating the base of the tongue tumor and neck mass allowed multiple nodes to become malignant. As a result, Mrs. Parvizi’s chances for survival are less than 50%.”
The trial court granted summary judgment in an order dated September 25, 2006. The court found that there was a triable issue of fact as to whether Hsieh was negligent in his care and treatment of Rosemary. The court also found, however, that there was no triable issue of material fact as to whether any negligence by defendants caused injury to Rosemary. As to Donald’s declaration, the trial court sustained respondents’ objections to paragraph 13. The trial court found that Donald stated only “ ‘assumptions, ’ ” as opposed to facts, that any negligence injured Rosemary. “Specifically, [Rosemary] failed to dispute with admissible evidence the fact that in October 2003 [Rosemary] had Stage IV cancer, that she had Stage IV cancer in September 2004 and that if her cancer had been diagnosed in October 2003, neither her treatment or staging of her cancer would have been different. The argument of [Rosemary’s] attorney that her life expectancy is reduced because of a delay in diagnosis is not supported by Dr. Donald’s ‘assumptions.’ ”
This court denied a writ petition challenging the trial court’s ruling. Appellants timely appealed from the “Order Granting Motion for Summary Judgment” that was filed the day after the trial court’s original summary judgment order.
No document titled judgment is included in the record on appeal. An appeal can be taken following an order granting summary judgment only after the court enters a judgment. (Swain v. California Casualty Ins. Co. (2002) 99 Cal.App.4th 1, 6.) We construe the trial court’s September 26, 2006, “Order Granting Motion for Summary Judgment, ” which states that “[j]udgment is hereby entered in favor of [respondents], ” as an appealable judgment because it evidences a clear intent to finally dispose of appellant’s complaint against respondents. (Ibid.) Indeed, had the document submitted by respondents’ counsel been titled “Judgment, ” there would be no ambiguity about the intent to enter judgment in favor of respondents.
II. DISCUSSION
A. Trial Court Had Jurisdiction To Hear Summary Judgment Motion.
We first consider appellants’ procedural argument (rejected below) that the trial court did not have jurisdiction to hold a hearing on respondents’ summary judgment motion. Notice of a summary judgment motion and supporting papers shall be served 75 days before the scheduled hearing on the motion, with additional notice required if the notice is served by mail. (Code Civ. Proc., § 437c, subd. (a).) “The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.” (Ibid.)
All statutory references are to the Code of Civil Procedure unless otherwise specified.
At the time that respondents filed their motion for summary judgment on June 29, 2006, trial was scheduled to begin on October 16, 2006. The clerk of the trial court scheduled a hearing for September 19, less than 30 days before the scheduled trial date. (Super. Ct. Contra Costa County, Local Rules, rule 12.4(C)(1) [clerk’s office sets hearings on law and motion matters].) Appellants argue on appeal, as they did below, that the trial court did not have jurisdiction to hear the summary judgment motion because the hearing was scheduled less than 30 days before trial. This argument lacks merit.
According to the declaration of respondents’ attorney, only a portion of which appears in the record on appeal, it was counsel’s understanding that the parties could not choose the hearing date, and that it must be set by the trial court. It was her experience that when the clerk’s office assigned a hearing date on a summary judgment motion within 30 days of trial, the court automatically ordered that the hearing date could take place. She did not become aware that no such order was sent out in this case until appellants raised the issue in their opposition to the summary judgment motion.
Appellants rely primarily on Wells Fargo Bank v. Superior Court (1988) 206 Cal.App.3d 918, 919, which held that a trial court may not refuse to hear a summary judgment motion filed within the time limits of section 437c. (See also Sentry Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 526, 529.) In Wells Fargo, the trial court ordered a motion for summary judgment off calendar pursuant to a local rule that hearings on extensive and complicated motions must be specially set with the law and motion department. (Wells Fargo Bank, supra, at p. 920.) Because of a backlog of such motions, the practical effect of the rule was to require additional notice of up to six months in order for a summary judgment motion to be heard. (Id. at pp. 920, 922-923.) Wells Fargo Bank held that the rule was void and unenforceable because it was inconsistent with section 437c. (Id. at p. 923.)
Wells Fargo’s mandate that a timely filed summary judgment motion be heard does not support appellants’ argument that the trial court lacked jurisdiction to hear the motion in this case. (Wells Fargo Bank v. Superior Court, supra, 206 Cal.App.3d at p. 923.) Appellants do not claim that they received inadequate notice of respondents’ summary judgment motion. (Cf. Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 764 [although trial court has discretion to shorten 30-day period in which it may hold hearing on motion, it may not shorten minimum notice period for serving motion].) They apparently do not claim that the trial court lacked jurisdiction to consider the motion. Instead, they argue only that the court lacked jurisdiction to hold a hearing on the motion on September 19, 2006, because that was less than 30 days before trial. But such a result would have deprived the parties of their “only opportunity to orally argue their case and to respond to the court’s inquiries through the give-and-take of questioning.” (Mediterranean Construction Co. v. State Farm Fire & Casualty Co. (1998) 66 Cal.App.4th 257, 264-265 [trial court may not deprive parties of hearing on summary judgment motions].)
Appellants note that because respondents’ motion was served by overnight mail on June 29, the hearing could have been held on September 14. September 15 was the last business day on which to hold a hearing more than 30 days before trial. Appellants are therefore quibbling over a difference of four or five days.
Even assuming that the trial court erred in holding a hearing on the motion on September 19, the error was not jurisdictional. (Beroiz v. Wahl (2000) 84 Cal.App.4th 485, 493, fn. 4 [time limit of section 437c, subd. (a) not jurisdictional because trial court has power to order later hearing]; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) ¶ 10:71, p. 10-28 [same].) “[A]ppellants have failed to show reversible error. Appellants responded fully to [respondents’] motion, and they have not suggested that the trial court’s error denied them any opportunity to enhance their opposition.” (Beroiz, supra, at p. 493, fn. 4.) Indeed, appellants took the deposition of respondent Hsieh after the summary judgment motion was filed, and used excerpts from the deposition in support of their opposition.
Appellants claim, without citation to any legal authority, that the “30-day rule was enacted to allow litigants time to prepare for trial after they know whether the case will be summarily terminated.” Citing Sierra Craft, Inc. v. Magnum Enterprises, Inc. (1998) 64 Cal.App.4th 1252, they claim that they need not show prejudice, and, indeed, they do not seriously claim that they were prejudiced in any way. Sierra Craft invalidated a local rule that permitted the trial court to grant summary judgment in favor of a party who simply opposed summary judgment (as opposed to filing a separate motion for summary judgment). (Id. at pp. 1254-1256.) Sierra Craft did not address the timing of summary judgment motion hearings.
Appellants claim that “[w]hile the motion was under submission, the parties were not relieved of their obligations to prepare issue and settlement conference statements, jury instructions and motions in limine.” The parties would presumably have had the same obligations if the hearing had been held five days earlier. Appellants are therefore essentially arguing that the trial court’s decision to go forward with the hearing meant that they had to spend five additional days preparing for a trial that never occurred.
Appellants claim that respondents could have asked the trial court to “inquire of the clerk who filed the motion as to why a Wells Fargo order was not issued.” (Lezama-Carino v. Miller (2007) 149 Cal.App.4th 55, 58 [appellate court requested trial court clerk to submit declaration regarding discrepancy between date that notice of appeal was received and the date it was filed].) While this may be true, appellants do not claim that such an inquiry would have shown that they were prejudiced by the failure to schedule an earlier hearing.
We acknowledge that section 437c, subdivision (a) requires a finding by the trial court of “good cause” before a hearing is held fewer than 30 days before trial, and that no such finding was made here, either explicitly or implicitly. We conclude, however, that “appellants have failed to show reversible error.” (Beroiz v. Wahl, supra, 84 Cal.App.4th at p. 493, fn. 4.)
B. Fee’s declaration was properly considered.
When respondents filed their motion for summary judgment on June 29, 2006, it was Fee’s understanding, as set forth in his declaration in support of summary judgment, that the fine needle aspiration done in August 2004 was done on the original mass detected in 2003. Respondent Hsieh thereafter apparently testified in his deposition on July 28, 2006, that the August 2004 needle aspiration was, in fact, performed on the new mass. Respondents filed a supplemental declaration by Fee dated July 28, 2006, that stated that the fact that the August 2004 needle aspiration took place on the newer neck mass did not affect his opinion.
Appellants argue that Fee’s supplemental declaration was “late” and should not have been considered. This argument is not well taken. Appellants acknowledge that Fee’s original declaration was based on an “erroneous assumption, ” and do not explain why he should not have been able to submit a new declaration based on what actually happened. The court’s docket reveals that Fee’s supplemental declaration was filed on July 31, 2006, more than a month before appellants filed their opposition papers (including the declaration of their expert) on September 5. Appellants therefore had ample time to respond to Fee’s supplemental declaration. Indeed, they did not seek a continuance to permit additional discovery in response to Fee’s supplemental declaration. (Cf. § 437c, subd. (h).) The trial court did not err in considering the supplemental declaration.
As to the substance of Fee’s declarations, appellants claim that the fact that the second lump (as opposed to the first) was found to be malignant was “critical” because “it [presumably, the testing of the original mass] was the basis for [Fee’s] conclusion that Stage IV cancer was present in October 2003.” In fact, Fee’s conclusion in his original declaration that Rosemary’s cancer was already stage IV in October 2003 was “based upon the size of the mass noted on the October 16, 2003 CT scan.” (Italics added.) In his supplemental declaration, Fee stated: “We know the primary tumor for the malignancy was ultimately found at the base of the patient’s tongue. The fact that the patient had malignancy, coupled with the measurement of the original mass noted on the October 16, 2003 CT scan confirms that as of October 16, 2003, the patient had stage IV cancer.” (Italics added.) Stated differently, the new information did not critically alter Fee’s opinion that respondents did not cause injury to Rosemary. Contrary to appellants’ assertion, Fee never “acknowledged” that the first mass was not found to be malignant, only that it was not tested for malignancy in August 2004. (The record on appeal does not reveal whether the first mass was ever tested for malignancy.) As with appellants’ jurisdictional argument, we find no reversible error.
C. Standard of Review.
In reviewing the trial court’s decision granting summary judgment, we examine the evidence de novo and “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) “[W]e determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff’s case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
In assessing each cause of action, we apply the same three-part analysis required of the trial court. (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 128.) We first identify the issues framed by the pleadings, then determine whether the moving party has established facts negating the opponent’s claim and, if the moving party has carried its burden, we conclude the analysis by determining whether the opposition has demonstrated the existence of a triable issue of material fact. (Ibid.; Code Civ. Proc., § 437c, subd. (p)(2).)
Although our review of a summary judgment order is de novo, we review the trial court’s rulings on evidentiary objections for an abuse of discretion. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.)
D. No Triable Issue of Fact Regarding Causation.
“The standard of care in a medical malpractice case requires that medical service providers exercise that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar circumstances.” (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215.) “ ‘[I]n any medical malpractice action, the plaintiff must establish: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.” [Citation.]’ [Citation.]” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) Because the trial court here found that there was a triable issue of fact as to whether Hsieh was negligent in his care and treatment of Rosemary, the sole issue on appeal is whether appellants presented sufficient evidence on the issue of causation to permit the dispute to be submitted to a jury.
“Liability for medical malpractice is predicated upon a proximate causal connection between the negligent conduct and the resulting injury. [Citation.] ‘[C]ausation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a distinction between a reasonable medical “probability” and a medical “possibility” needs little discussion. There can be many possible “causes, ” indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes “probable” when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.’ [Citation.]” (Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603; see also Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 509.) “In a medical malpractice action the element of causation is satisfied when a plaintiff produces sufficient evidence ‘to allow the jury to infer that in the absence of the defendant’s negligence, there was a reasonable medical probability the plaintiff would have obtained a better result. [Citations.]’ [Citation.]” (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1314-1315, original italics; see also 6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1184, pp. 551-552.)
We agree with the trial court that appellants failed to demonstrate a triable issue of fact regarding causation of injury to Rosemary. Fee stated that even if Rosemary’s cancer had been diagnosed when Rosemary first visited Hsieh in October 2003, “neither the patient’s course of treatment, nor the staging of the cancer would have been any different.” Rosemary also would have required chemotherapy and radiation therapy and, had the mass persisted, required a neck dissection. “Moreover, the staging of the patient’s cancer, which was noted to be stage IV cancer upon diagnosis in September, 2004, was already stage IV cancer back in October, 2003, based upon the size of the mass noted on the October 16, 2003 CT scan. Therefore, nothing Dr. Hsieh did, or did not do, contributed to any change in the course of treatment or the staging of the patient’s cancer.”
Contrary to appellants’ argument, Fee’s declaration established a prima facie showing that justified a judgment in the respondents’ favor, because Fee stated that Hsieh’s actions did not cause Rosemary’s injury. (§ 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The burden then shifted to appellants to make a prima facie showing of the existence of a triable issue of material fact. (§ 437, subd. (p)(2); Aguilar, supra, at p. 849.) Appellants focus on the fact that Fee did not say anything regarding Rosemary’s prognosis or whether her life expectancy was affected by the delay in removing her cancerous tumor. However, given that Fee stated that any delay in diagnosing Rosemary’s cancer did not affect the staging of her cancer or her treatment, respondents established a prima facie case that Hsieh did not cause any injury to Rosemary. We therefore disagree with appellants that Fee did not address the “harm” to Rosemary.
Citing Doupnik v. General Motors Corp. (1990) 225 Cal.App.3d 849, 862-864, appellants claim that “[r]espondents did not show that what is going to happen in the future was going to happen anyway.” Doupnik was a product liability case against a car manufacturer; the opinion addressed whether a defective design was the cause of plaintiff quadriplegic’s injuries, when plaintiff’s driving after drinking also contributed to his injuries. (Id. at pp. 854, 860-861.) Because the case addressed causation issues specific to automobile manufacturer liability, and not medical malpractice, its analysis does little to assist us in this case.
We also disagree with appellants’ argument that Fee’s declaration had “no evidentiary value” because there was no foundation for concluding that assumed facts actually existed, or that the basis for Fee’s opinion regarding staging was “not supported by admissible evidence that the first lump was found to be malignant.” To the contrary, Fee’s conclusion that Rosemary’s cancer was at stage IV in October 2003 was based on the size of the mass that was detected.
Because this was a case where appellants alleged a delayed diagnosis, they were required to show that absent Hsieh’s negligence, there was a probability (as opposed to a possibility) of a better result. (Dumas v. Cooney, supra, 235 Cal.App.3d at p. 1603.) “In such cases, the result complained of in the lawsuit is one which would normally have been expected to follow from the original injury or disease, rather than from any effects of misdiagnosis or mistreatment.” (Espinosa v. Little Co. of Mary Hospital, supra, 31 Cal.App.4th at p. 1319.) To prove the defendant’s negligence was a substantial factor in causing the plaintiff’s condition, the plaintiff must present expert testimony that if proper and timely treatment had been given, a better result (i.e., the patient’s survival or a probability that he would have done so) would have followed. (Dumas, supra, 235 Cal.App.3d at p. 1603.) If there is less than a 50-50 possibility (“a mere chance”) that Hsieh’s alleged omission caused Rosemary harm, that does not meet the requisite medical probability test for proximate cause. (Ibid.; see also Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1504.)
In Donald’s declaration submitted in opposition to summary judgment, appellants’ expert did not address the staging of Rosemary’s cancer, or whether any delay in diagnosing Rosemary’s cancer affected that staging. Donald also did not address the significance of the size of the mass that was discovered in October 2003. He focused instead on the fact that the delay in diagnosing Rosemary’s cancer allowed multiple nodes to become malignant. Again, however, as the trial court found, Rosemary “failed to dispute with admissible evidence the fact that in October 2003 [she] had Stage IV cancer, that she had Stage IV cancer in September 2004 and that if her cancer had been diagnosed in October 2003, neither her treatment or staging of her cancer would have been different.”
Appellants complain that the term “staging” in Fee’s declaration was not defined. However, this term was not beyond common experience such that respondents’ expert was required to define it. (Evid. Code, § 801, subd. (a); Bushling v. Fremont Medical Center, supra, 117 Cal.App.4th at p. 510.) Appellants also complain, without citation to the record or to any authority, that Fee “did not say that all Stage IV’s have the same prognosis because they do not.” They argue that Fee did “not say that the life expectancy for all Stage IV cancers is the same and he d[id] not say whether there is a Stage V and how Stage V differs from Stage IV as far as life expectancy is concerned.”
Rather than address those issues, or Fee’s conclusion that no action by Hsieh led to a different course of treatment for Rosemary, Donald simply stated that assuming the mass discovered in October 2003 was malignant, then only one lymph node was shown to be possibly malignant. He did not address the significance of the size of the mass or what stage of cancer the possible malignancy represented. He then concluded in paragraph 13: “With proper diagnosis and treatment in or around October, 2003, Mrs. Parvizi had an 85-90% chance of being completely cured. On the other hand, the prognosis where multiple nodes are malignant is poor. When the base of the tongue tumor was discovered, multiple lymph nodes were malignant. The delay in diagnosing and treating the base of the tongue tumor and neck mass allowed multiple nodes to become malignant. As a result, Mrs. Parvizi’s chances for survival are less than 50%.”
The trial court sustained respondents’ objection to paragraph 13 of Donald’s declaration, a ruling we review for abuse of discretion. (Carnes v. Superior Court, supra, 126 Cal.App.4th at p. 694.) “[A]n expert’s opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based.” (Bushling v. Fremont Medical Center, supra, 117 Cal.App.4th at p. 510.) Donald’s opinion that the delayed diagnosis of Rosemary’s cancer reduced her chance of survival is conclusory and not based on specific facts or reasons.
In arguing on appeal that the trial court erred in sustaining an objection to Donald’s declaration, appellants focus on Donald’s opinions regarding whether Hsieh provided negligent care in October 2003 by failing to palpate the base of Rosemary’s tongue to discover the base of tongue cancer, and by failing to remove the mass assuming that he knew that the base of tongue cancer was the primary site of the malignancy. But there is no question that appellants met their burden to raise a triable issue as to Hsieh’s negligence, because the trial court concluded that they had.
As to the critical issue of causation, appellants restate the assumptions in Donald’s declaration and conclude that those assumptions were “reasonable, ” without pointing to specific evidence to support the assumptions. They then simply repeat Donald’s unsupported conclusion that Rosemary’s “cure rate” was affected by the failure to diagnose her in 2003. Appellants suggest that, as to causation, the sole focus should have been on the fact that a second lump was found in 2004, and that Hsieh’s failure to diagnose Rosemary’s cancer in 2003 allowed that mass to appear. Again, however, Donald failed to address the significance of the size of the first mass that was detected, or the fact that Fee concluded that Rosemary already had stage IV cancer when she first saw Hsieh in 2003.
Appellants direct us to the recently decided Powell v. Kleinman 151 Cal.App.4th 112, which reversed the grant of summary judgment in a medical malpractice case after concluding that the trial court improperly excluded from evidence various statements in an expert witness’s declaration opposing summary judgment. Plaintiff alleged that defendant doctors failed to promptly diagnose and treat an injury to his spinal cord. (Id. at p. 115.) In opposing summary judgment, plaintiff submitted a declaration from an expert stating, in part, that one of the doctors should have taken steps to ascertain the results of an MRI. (Id. at pp. 118-119.) The court held that the trial court abused its discretion in disregarding that portion of the declaration, because it was reasonable to infer, based on the evidence presented, that the doctor did not make efforts to obtain the relevant MRI results. (Id. at pp. 127-128) Here, by contrast, Donald’s opinion was not based on admissible evidence or assumptions in the record. Even giving, as we must, a “liberal construction” to a declaration opposing summary judgment in a medical malpractice case (id. at p. 128), Donald’s declaration failed to raise a triable issue of fact.
In short, the trial court did not abuse its discretion in sustaining respondents’ objection to paragraph 13 of Donald’s declaration. Because appellants failed to dispute with admissible evidence the fact that Hsieh did not cause Rosemary’s injuries, the trial court did not err in granting summary judgment for respondents.
Appellants also complain that the trial court did not specify the reasons for sustaining the objection to paragraph 13. Assuming arguendo that the trial court was required by section 437c, subdivision (g) to set forth the reasons for sustaining the objection (as opposed to the reasons for its determination to grant summary judgment), the failure to do so was harmless, because we review the validity of the ruling and not the reasons therefore. (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1146.)
E. No Triable Issue of Fact on “Informed Refusal” Theory.
Appellants also claim that summary judgment was inappropriate because the trial court did not address their “informed refusal” claim. Even assuming arguendo that this cause of action was reasonably contemplated by the pleadings, we conclude that summary judgment was appropriate as to this claim.
We agree with the general proposition that when a patient declines treatment, a doctor has the duty to advise the patient of all material risks of which a reasonable person would want to be informed before declining to undergo the procedure, and that the scope of this duty is not measured by a community professional standard. (Truman v. Thomas (1980) 27 Cal.3d 285, 295; Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 737-738.) However, this cause of action also fails because appellants still have not shown that any negligence by respondents caused Rosemary harm. Rosemary claims that had she been told that excisional biopsy was the only way to rule out malignancy, she would have immediately scheduled surgery. Assuming that surgery would have led to a diagnosis of Rosemary’s cancer, Fee’s declaration established that such a diagnosis would not have been different from the diagnosis that was subsequently made in September 2004. Again, appellants failed to raise a triable issue of material fact as to causation.
F. No Loss of Consortium Claim.
“[Ben’s] loss of consortium cause of action stands or falls with [his wife’s] claims.” (Jablonski v. Royal Globe Ins. Co. (1988) 204 Cal.App.3d 379, 388; see also Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 162.) Because we have found that summary judgment was appropriate as to Rosemary’s negligence claims, we likewise conclude that summary judgment was appropriate as to Ben’s loss of consortium cause of action. (Ibid.)
G. Summary Judgment Appropriate For The Medical Group.
Appellants do not address on appeal why summary judgment was inappropriate as to the medical group. Because our independent review reveals no error, we likewise affirm summary judgment as to the medical group.
III.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
We concur: Ruvolo, P. J., Reardon, J.