Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SC083872, Gerald Rosenberg, Judge.
Passman & Cohen, Sanford M. Passman and H. Jason Cohen for Plaintiff and Appellant.
Bonne, Bridges, Mueller, O’Keefe & Nichols, David J. O’Keefe, Vangi M. Johnson; Taylor Blessey and Raymond L. Blessey for Defendants and Respondents.
MALLANO, Acting P. J.
Defendant Alan Rosenbach, a dermatologist, removed a mole from plaintiff Charles Shapiro’s body. The laboratory that analyzed the removed tissue was unable to conclude whether the mole was cancerous. Shapiro consulted another doctor, who removed more tissue at the site of the mole and also removed two lymph nodes. The biopsy results revealed no cancer. Shapiro sued Rosenbach and his professional corporation (hereinafter Rosenbach) for medical malpractice. Supported primarily by the declaration of an expert, Dr. Bernard Gottlieb, a dermatologist, Rosenbach moved for summary judgment on the grounds that Rosenbach’s care and treatment of Shapiro was within the standard of care and that Rosenbach’s care and treatment was not a substantial factor in causing the alleged injury to Shapiro. In opposition to the summary judgment motion, Shapiro did not offer any expert declaration but challenged the sufficiency of Gottlieb’s declaration. We affirm the summary judgment because Gottlieb’s declaration was sufficient to meet Rosenbach’s burden on summary judgment.
BACKGROUND
On July 22, 2003, Shapiro saw Rosenbach for a skin cancer evaluation. Shapiro had a basal cell cancerous area of skin removed from his right chest area by Dr. Lawrence Rivkin about four years before, and so informed Rosenbach. Rosenbach used a dermoscope, or skin surface microscope, attached to a molemax, or camera, to scan and photograph each of the pigmented lesions on Shapiro’s body. In Shapiro’s right chest area where he previously had cancer, Rosenbach found an atypical pigmented lesion. Rosenbach told Shapiro that he wanted to examine the lesion further by way of an excisional biopsy and to send it to a laboratory for pathological diagnosis.
At first Shapiro was against the biopsy because he felt that basal cell was a relatively benign form of skin cancer and that it had already been removed. But after Rosenbach said that he would have to send Shapiro a certified letter explaining that a biopsy needed to be done because of the possibility of malignancy, Shapiro scheduled the biopsy with Rosenbach.
On September 16, 2003, Rosenbach excised the lesion and submitted it to a laboratory in New York, the Ackerman Academy of Dermatopathology (Ackerman). On September 30, 2003, Dr. Ying Guo, a pathologist at Ackerman, prepared a report stating that Shapiro’s lesion revealed changes consistent with “either recurrent/persistent melanocytic nevus, or recurrent/persistent melanoma,” but that a diagnosis “can only be made with certainty if the sections from the [earlier] biopsy specimen are reviewed.” Guo asked that the earlier biopsy specimen be sent to Ackerman for review.
On October 15, 2003, Rosenbach sent a letter to Shapiro stating that the only way to rule out the possibility of malignant melanoma would be to have the slides from his earlier biopsy sent to Ackerman. Rivkin’s office sent the specimen to Rosenbach’s office and Rosenbach’s office sent them to Ackerman. But Ackerman could not determine whether the specimen from Rivkin was removed from the same area of the body that had been excised by Rosenbach. In an addendum report dated December 2, 2003, Guo wrote that “[t]he [earlier] sections are not available for review. However, this lesion must be removed completely with a rim of normal, non-scarred skin.” According to Rosenbach, he had several telephone calls with Ackerman in which the lab acknowledged receiving the Rivkin slides, but Ackerman was confused because Rosenbach’s report stated the lesion was in the “right upper quadrant of the abdomen” and Rivkin stated it was in the “right upper quadrant of the chest, and that it was a different skin cancer.” Ackerman apparently “did not want to hang their hat, so to speak, on that previous section without being absolutely certain that it was the same [area of the body].”
Meanwhile, in November 2003, Shapiro returned to see Rivkin. According to Shapiro, he tried to contact Rosenbach’s office on a number of occasions and Rosenbach failed to communicate with him, causing him “enormous stress and anxiety.” Shapiro believed Rosenbach had unilaterally terminated their doctor-patient relationship. Rivkin referred Shapiro to Dr. Richard Essner at the John Wayne Cancer Institute.
According to Rosenbach, in December 2003 Shapiro was then being treated by Essner and was not taking telephone calls from Rosenbach, so Rosenbach did not contact Shapiro with regard to the December 2, 2003 addendum report from Ackerman. Rosenbach no longer considered Shapiro to be his patient after Shapiro came under the care of Essner.
On December 15, 2003, Essner submitted the pathology slides from the September 16, 2003 biopsy to Dr. Allen Warren of St. John’s Health Center. Warren found the slides to show “inflammation and scarring consistent with biopsy site, atypical melanocytic lesion involving epidermis and papillary dermis, focally extending to inked markings, and dense lymphocytic infiltrate.” Warren discussed his findings with Essner, who recommended that Shapiro undergo a wide excision of the area in conjunction with selective lymph node dissection. Given that the lesion had arisen in the previously biopsied area, Essner was concerned that “the current biopsy would underestimate the true metastatic nature of the lesion.” Essner performed the surgery on January 9, 2004, which entailed the removal of lymph nodes under each of Shapiro’s arms. The biopsy results of the January 9, 2004 surgery revealed that Shapiro was cancer free.
In December 2004, Shapiro filed a complaint against Rosenbach for medical malpractice. The complaint alleged that Rosenbach “negligently failed to diagnose and treat [Shapiro’s condition] with the requisite standard of care, exercised by other dermatologists in the same or similar circumstances and locality in that the medical procedure utilized by [Rosenbach] in excising the subject mole and surrounding tissue was completed in a fashion so as to cause confusion to the pathology lab that the mole and surrounding tissue was forwarded to. Furthermore, [Rosenbach], in performing said procedure, failed to remove enough material from [Shapiro’s] body so as to allow Ackerman to correctly conclude whether or not there was the presence, or absence of, cancerous cells in said tissue.” Shapiro alleged that, as a result of Rosenbach’s negligence, he was required to undergo the subsequent surgery by Essner, which resulted in “injury to [Shapiro’s] body and mind, including but not limited to, permanent scarring of his chest and underarms, and a greater susceptibility to illness.”
After answering the complaint, Rosenbach moved for summary judgment on two grounds: (1) Rosenbach’s care and treatment of Shapiro was within the appropriate standard of care and (2) Rosenbach’s care and treatment was not a substantial factor in causing injury to Shapiro. The motion was supported by the declaration of Gottlieb and the medical records pertaining to Shapiro’s treatment.
Gottlieb declared that he received his medical degree in 1956; he is licensed to practice medicine in California; he is board certified in dermatology, anatomic pathology and dermatopathology; and he is a clinical professor in pathology and dermatology at USC. Because of his education, training and experience, Gottlieb is familiar with the standard of care and practice for a dermatologist as it applies presently and in 2003. Gottlieb reviewed “relevant portions” of Shapiro’s pathology slides and medical records of his treatment from, among others, Rosenbach, Essner, and Ackerman. Based on Gottlieb’s education, training, experience, and his review of Shapiro’s medical records, Gottlieb held the following opinions: (1) Rosenbach’s examination of Shapiro on July 22, 2003, was within the standard of care for dermatologists; (2) it was reasonable and within the standard of care for Rosenbach to excise the lesion, which appeared abnormal by way of dermoscopy, on September 16, 2003, found on Shapiro’s right upper abdominal area; (3) the timing of when the September 16, 2003 specimen was sent to Ackerman had no bearing on the pathology results found by Guo at Ackerman; (4) the recommendation of Guo to completely remove the lesion with normal margins was appropriate; (5) the recommendations of Essner and Guo were arrived at independently of Rosenbach; (6) Rosenbach’s care and treatment of Shapiro was appropriate and within the standard of care at all times; and (7) to a reasonable degree of medical probability, nothing Rosenbach did or did not do contributed to Shapiro’s alleged injuries.
In opposition to the motion, Shapiro submitted, among other evidence, his declaration and portions of Rosenbach’s deposition testimony. Shapiro also filed objections to Gottlieb’s declaration on the grounds that Gottlieb failed to establish that he qualified as an expert and his opinions constituted speculation and legal conclusions. But Shapiro did not provide any expert declaration to counter the opinions expressed by Gottlieb.
After a hearing, the trial court overruled the objections to Gottlieb’s declaration and granted the motion. Shapiro appealed from the judgment. His primary contention on appeal is that the trial court erred in overruling his objections to Gottlieb’s declaration. Shapiro maintains that Gottlieb’s declaration was insufficient to qualify Gottlieb as an expert, as well as “wholly conclusory,” in that it failed to identify the particular medical records Gottlieb reviewed and it failed to address the issues raised in opposition to the summary judgment motion. Shapiro asserts that Gottlieb’s declaration “neglects to address the very critical issue of Dr. Rosenbach’s failure to communicate information to [Shapiro] in a timely fashion, and the ramifications of the Ackerman addendum, which states that slides from the [earlier] biopsy, previously performed by Dr. Rivkin, were never received by Ackerman. Furthermore, the declaration of Dr. Gottlieb sheds no light on why the Ackerman addendum dated December 2, 2003, states that the lesion must be removed completely . . . in the face of both the operative report executed by Dr. Rosenbach . . . and [his] deposition testimony . . ., which demonstrate that Dr. Rosenbach had previously removed the entire subject lesion.”
The December 2, 2003 addendum from Ackerman does not state that Ackerman never received the Rivkin slides, but that “[t]he [earlier] sections are not available for review.” Rosenbach’s deposition testimony was that the Rivkin biopsy slides were indeed received by Ackerman, but because of the labeling of the slides, Ackerman concluded that the tissue removed by Rivkin might have been taken from a different part of Shapiro’s body than the tissue removed by Rosenbach.
DISCUSSION
Shapiro’s sole claim on appeal is that Gottlieb’s declaration is insufficient to support the summary judgment in Rosenbach’s favor.
We review a summary judgment ruling de novo and decide independently whether the moving party is entitled to a judgment as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) A defendant moving for summary judgment need only negate the plaintiff’s theories of liability alleged in the complaint. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)
The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law, and further “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “We consider all of the evidence the parties offered in connection with the motion, except that which the court properly excluded, and the uncontradicted inferences the evidence reasonably supports.” (Borders Online v. State Bd. of Equalization (2005) 129 Cal.App.4th 1179, 1188.)
The courts have addressed the issue of the sufficiency of expert declarations to support the granting of a defendant’s summary judgment motion in a medical malpractice case in Kelley v. Trunk (1998) 66 Cal.App.4th 519 (Kelley) and Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493 (Bushling). But Shapiro’s reliance on these cases is unavailing because Kelley is distinguishable from the instant case and Bushling actually supports the summary judgment in favor of Rosenbach.
In Kelley, the Court of Appeal reversed a summary judgment motion because the moving defendant’s expert declaration failed to disclose upon what he relied in forming his opinion and failed to contain supporting reasons or explanations. (Kelley, supra, 66 Cal.App.4th at p. 524.) The court in Kelley also reversed because the plaintiff had submitted an opposing expert declaration, so that “even if [the defendant’s expert’s] opinion standing alone had been sufficient to support summary judgment, in this case a well-credentialed expert presented an opposing opinion, giving rise to a material issue of fact for trial: Which expert opinion was correct?” (Ibid.) Here, Gottlieb disclosed the materials upon which he relied in forming his opinions and it is clear that his opinions were based on his own independent evaluation of the biopsy slides and medical reports. And unlike Kelley, there was no countervailing declaration to that of Gottlieb.
In Bushling, the Court of Appeal affirmed a summary judgment in favor of the defendants (two doctors and a medical center), determining that the defendants produced sufficient evidence to show that there was no triable issue of material fact and that the plaintiff’s expert’s declarations in opposition to the motion “were of no evidentiary value on the question of negligence or causation” because there was no evidence for the underlying events on which their opinions were based. (Bushling, supra, 117 Cal.App.4th at p. 511.)
The plaintiff in Bushling went into the hospital for abdominal surgery and the morning after the operation experienced pain and nerve damage in his shoulder. The plaintiff’s theory was that during the abdominal surgery, he was dropped, his arm had been improperly positioned during the surgery, or his arm had been stretched. The plaintiff’s experts expressed opinions that his injury occurred more probably than not from those events. But the Court of Appeal noted that the medical records did not support the scenarios suggested by the plaintiff and held that the plaintiff’s experts’ opinions were “no more than speculation if there is no factual basis for those events. And we note that plaintiff presented no evidence to suggest that an injury such as the one he suffered was rare or unusual in the absence of negligence.” (Bushling, supra, 117 Cal.App.4th at p. 511.)
Although the court in Bushling questioned whether the plaintiff had waived a challenge to the sufficiency of the expert declarations offered by the defendants because the plaintiff failed to object below, the Court of Appeal nevertheless addressed the issue on its merits. In rejecting the plaintiff’s challenges, the Bushling court stated, “It is not conclusory for Dr. Rosson [one of the defendants] to describe his treatment of plaintiff and state that he was not negligent. The declarations of Dr. Cobb and Dr. Jain, both of whom are experienced in the relevant medical procedures and both of whom reviewed the plaintiff’s medical records relating to the surgery (and in Dr. Jain’s case, based also on the deposition testimony of Dr. Weber) were also admissible. To state that one has experience in certain medical procedures and has reviewed pertinent medical records and that based on that experience and that review, the declarant has found nothing to support a claim of medical malpractice and therefore concludes that there was none is not an improper conclusion for an expert witness. The expert has given an explanation for that expert’s conclusion that defendants are not guilty of medical malpractice: Based on the expert’s experience and the patient’s medical records, there is no evidence to support a claim of negligence as a cause of injury. The reason for the opinion is the absence of evidence of medical malpractice. That opinion is significantly different than one that concludes that the standard of care has not been met resulting in an injury, but fails to give a reasoned explanation, based on facts and not on speculation, of why the expert has come to those conclusions.” (Bushling, supra, 117 Cal.App.4th at p. 509.)
Thus, Bushling establishes that a moving party’s expert doctor’s declaration may be sufficient if the doctor states that he or she has experience in the pertinent medical procedures, has reviewed the pertinent medical records and, based on that experience and that review, concludes that there is nothing to support a claim of medical malpractice. In such a case, the doctor’s declaration need not “set forth in excruciating detail the factual basis for the opinions stated therein.” (Cf. Hanson v. Grode (1999) 76 Cal.App.4th 601, 608, fn. 6 [the plaintiff’s expert’s declaration in opposition to summary judgment motion held adequate because it identified specific conduct that breached the standard of care].)
In light of the foregoing principles, we conclude that Gottlieb’s declaration contains sufficient information to support a conclusion that he has the special knowledge, skill, experience, and education to qualify as an expert. Gottlieb is board certified in California in dermatology, anatomic pathology and dermatopathology, he received his medical degree in 1956 from the University of Pittsburgh School of Medicine, he completed his internship in 1957 at Michael Reese Hospital, he completed residencies in 1959 at Cedars of Lebanon, Los Angeles, he completed fellowships in 1963 at the Mayo Clinic in Rochester, Minnesota, and he currently is a clinical professor in pathology and dermatology at USC. Uncontradicted inferences arising from the declaration are that Gottlieb is highly trained and skilled in his areas of certification and has many years of experience in those fields. His declaration contains sufficient information about his background and experience to qualify him as an expert.
We also conclude that Gottlieb’s declaration is sufficient to support Rosenbach’s summary judgment motion. The charges of malpractice in the complaint are that Rosenbach performed the biopsy in a manner so as to cause confusion to Ackerman and that Rosenbach failed to remove enough material from Shapiro’s body so as to allow Ackerman to conclude correctly whether or not the mole was cancerous. But Gottlieb reviewed the biopsy slides and the medical records of Shapiro’s treatment and concluded that Rosenbach’s biopsy was reasonable and within the standard of care and that Rosenbach’s care and treatment of Shapiro was appropriate and within the standard of care at all times. Gottlieb also held the opinion, based on the medical records and materials and his experience and training, that nothing Rosenbach did or failed to do contributed to Shapiro’s alleged injuries.
Shapiro faults Gottlieb’s declaration for failing to contain explanations of statements in Ackerman’s reports and other matters. But Gottlieb expressly stated that he considered the Ackerman reports, as well as the other medical reports and the biopsy slides. The only reasonable inference from Gottlieb’s declaration is that the materials he reviewed did not reveal any medical malpractice on the part of Rosenbach. Thus, the analysis in Bushling is equally applicable here and supports the conclusion that Gottlieb’s declaration is sufficient to support Rosenbach’s summary judgment motion. And Rosenbach’s deposition testimony satisfactorily explains the statement in the Ackerman report as to why Ackerman could not make a diagnosis based upon the tissues excised by Rivkin, first, and then Rosenbach.
DISPOSITION
The judgment is affirmed. Defendants are entitled to their costs on appeal.
We concur: VOGEL, J. ROTHSCHILD, J.