Metropolitan News-Enterprise


Monday, April 5, 2004


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Expert Declarations on Injury Cause Must Cite Facts, C.A. Rules

Dissenter Says Ruling Unduly Eases Path to Summary Judgment in Medical Malpractice Cases


By DAVID WATSON, Staff Writer


Expert declarations in a medical malpractice case that an injury probably would not have occurred without negligence are insufficient to withstand summary judgment if they do not provide a factual basis or reasoned explanation for that opinion, a divided Third District Court of Appeal panel ruled Friday.

The majority’s opinion provoked a dissent from Justice Richard M. Sims III, who said it unduly lightened the burden of a party seeking a summary disposition. He also  suggested that it may require that a “a full-blown trial of expert views” be conducted to resolve summary judgment motions in many medical malpractice cases.

The plaintiff in the case, Kevin Bushling, sued after undergoing surgery to remove his gall bladder and biopsy a mole on his abdomen. He claimed he began to suffer shoulder pain immediately after the procedure.

  Bushling asserted he had to undergo multiple shoulder operations and eventually lost all use of the joint, becoming completely disabled.

Probability Cited

When the surgeon, anesthetist and hospital supported their motions for summary judgment with declarations averring that no negligence occurred, Bushling opposed them by submitting declarations from a professor of anesthesiology and an orthopedic surgeon opining that Bushling’s shoulder problem “more probably than not” resulted from being dropped or improperly positioned during the surgery.

Writing for himself and Justice Rodney Davis, Justice Harry E. Hull Jr. said those declaration were “of no evidentiary value” because they contained no facts which would support a belief that anyone had dropped Bushling or positioned him improperly.

“The doctors assume the cause from the fact of the injury,” Hull said, explaining that their opinions were “nothing more than a statement that the injury could have been caused by defendants’ negligence in one of the ways they specify.”

Under Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, the justice said, once a party moving for summary judgment has made a “prima facie showing of the nonexistence of a triable issue of material fact,” the opponent has “the burden of producing evidence sufficient to make a prima facie showing of the existence” of a triable issue.

“[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,” Hull declared.

But Sims said the majority was overstating the significance of Aguilar, discounting expert evidence based on poor lawyering, and perhaps complicating summary judgment motion hearings in medical malpractice cases.

Aguilar, Sims said, did not change the traditional rule that summary judgment is a drastic measure that should not be lightly substituted for a trial.

Though the two declarations so sloppily drafted that they gave the impression Bushling’s action was a “junk case,” Sims said, he noted that Bushling’s attorney provided an explanation for that at oral argument. The lawyer explained he was debilitated by chemotherapy treatments at the time the motion was being litigated.

“We must look past the grammatical and syntactical errors in the declaration to examine its substance,” the dissenting justice said.

Res Ipsa Loquitur

In essence, Sims argued, the declarations were asserting that an injury such as the one Bushling suffered does not ordinarily occur without negligence, and they should have been found sufficient to withstand summary judgment based on the theory of res ipsa loquitur.

While it was possible Bushling’s shoulder symptoms had nothing to do with the surgery, that would be a “wholly remarkable coincidence,” Sims said.

Easing the path to summary judgment, Sims warned, is likely to complicate rather than simplify medical malpractice litigation, since it will require plaintiffs to fully develop their expert evidence just to get their cases to trial.

He declared:

“This will further increase the costs of litigation and will make it harder to settle cases. It will also require trial and appellate judges to wade through more reams of paper.  This is all bad.”

The case is Bushling v. Fremont Medical Center, C041673.


Copyright 2004, Metropolitan News Company