Metropolitan News-Enterprise


Friday, June 2, 2006


Page 3


Expert Declaration Held Sufficient to Withstand Summary Judgment in Medical Malpractice Case


By TINA BAY, Staff Writer


Where a woman suing her former surgeon for malpractice filed, in opposition to the surgeon’s motion for summary judgment, an expert declaration that the surgeon’s preoperative evaluation fell below the accepted standard of care and that the surgery was premature and unnecessary, there was sufficient evidence to put the element of causation in issue, the Court of Appeal for this district ruled yesterday,

Writing for the court, Presiding Justice Joan Dempsey Klein of Div. Three said that the expert declaration was sufficient to raise a triable issue of material fact as to the presence of a causal connection between the allegedly negligent conduct and the injury.

“Although the trial court read this declaration as being silent with respect to the issue of causation, it seems self-evident that unnecessary surgery is injurious and causes harm to a patient. Even if a surgery is executed flawlessly, if the surgery were unnecessary, the surgery in and of itself constitutes harm,” she said.

The panel rejected Dr. Dan Joshua Castro’s appeal of the trial court’s order for new trial. Marian Tortorella sought Castro’s help in 2002, after a series of medical consultations regarding her chronic left-side facial pain and pressure revealed that she had serious sinus problems. Upon examining Tortorella, Castro concluded she was an appropriate candidate for bilateral endoscopic sinus surgery, septoplasty and partial turbinectomy. Tortorella underwent the surgeries and when she suffered post-surgery pain, sued Castro alleging that her pain stemmed from permanent and serious injuries caused by his negligence in examining, diagnosing and treating her.

Castro brought a motion for summary judgment focusing on the absence of evidence to support the element of causation. In opposition, Tortorella filed the declaration of a board certified specialist who explained that the facts of Tortorella’s case indicated surgery was unnecessary.

Los Angeles Superior Court Judge Jacqueline Connor granted Castro’s motion and Tortorella brought a motion for new trial, which Connor granted “based on the equities of the circumstances” and “legal precedence preferring resolutions [on] the merits rather than through technical errors.” Castro appealed, seeking reversal on the grounds that the order for new trial had no statutory basis.

Klein agreed with Castro that the trial court’s rationale for granting a new trial did not fit within the framework of the Code of Civil Procedure, but said the order was proper as long as it should have been granted on any ground stated in Tortorella’s motion.

“Tortorella’s motion for new trial established the decision granting summary judgment constituted an ‘error in law,’” she wrote. Where a new trial motion is brought on this ground, grant of the motion is proper as long as the trial court was wrong in granting summary judgment in the first instance, she explained, citing precedent.

Reviewing Tortorella’s expert declaration, the panel resolved that a triable issue as to causation was raised by the expert’s statement that Castro’s failures were “‘an indication that surgery was unnecessary’” and that he was “‘able to conclude with a high degree of medical probability that the pre-operative evaluation and the endoscopic sinus surgery performed by Dr. Castro...fell below the accepted standard of care in the field of otolaryngology.’”

“[I]f the opposing papers raise a triable issue as to whether a physician deviated from the standard of care by unnecessarily performing surgery, that is sufficient also to raise triable issues with respect to [causation],” Klein said.

Although the trial court’s grant of summary judgment was improper, she noted, the trial court remedied its error by granting Tortorella’s motion for new trial.

Attorneys on appeal were Kenneth A. Maranga and Reinhold Mueller of Maranga Morgenstern and Martin Stein and Carolyn Oill of Greines, Martin, Stein & Richland for the defendant and Kevin H. Park of Wasserman, Comden & Casselman for the plaintiff.

The case is Tortorella v. Castro, 06 S.O.S. 2832.


Copyright 2006, Metropolitan News Company