A Gift for Plaintiff's Medical Malpractice Attorneys

Every once in a while a case comes along that is so helpful that we have to save it in our little bag of tricks. Perhaps that is why the defense has filed a Petition for Review and hired some high-powered appellate attorneys to enter the fray.

Garibay v. Hemmat (2008) 161 Cal.App.4th 735 was decided by the Second Appellate District. The plaintiffs sued the defendant physician, claiming he performed an unsuccessful bilateral tubal litigation. The defendant filed a motion for summary judgment, relying on a medical expert, whose opinion was based on a review of the medical records. The records were not properly admitted into evidence and were not attached to either the expert declaration or summary judgment motion. Plaintiffs appealed.

The court concluded the summary judgment motion was insufficient “because there were no facts before the court on which the expert medical witness could rely to form his opinion.” (Id. at p. 737.) The expert was not a percipient witness. The court noted, “A proper method for producing these facts would have been, for example, by means of a declaration or deposition testimony from the doctor who performed the surgery, or by properly authenticated medical records placed before the trial court under the business records exception to the hearsay rule.” (Id. at p. 738.)

Because defendant failed to present the records, there was no evidence to support the expert’s opinion or the motion. The court noted that an expert can only form an opinion and the moving defendant can only meet the burden of production by placing the facts first before the court.

The court cited Kelley v. Trunk (1998) 66 Cal.App.4^th 519, 523, a favorite case that every plaintiff’s attorney who handles medical malpractice cases should know by heart, which held that an expert opinion, unsupported by reasons or explanations, is insufficient to support a motion for summary judgment. “[T]hat standard is not satisfied by laconic expert declarations which provide only an ultimate opinion, unsupported by reasoned explanation.” (Id. at p. 525.)

The court in Gariby acknowledged that expert testimony can be the basis for expert medical opinion. But reciting hearsay evidence, upon which the expert relies, will “not transform inadmissible matter into ‘independent proof’ of any fact.” (Id. at p. 743.) The expert cannot relate the hearsay statements as an independent proof of the fact. The court further stated:

“Physicians can testify as to the basis of their opinion, but this is not intended to be channel by which testifying physicians can place of the opinion of out-of-state physicians before the trier of fact.” (Id. at p. 743.)

Thus, defendant failed to meet its burden of production, and the court reversed the judgment.

In the past, defendants filed motions for summary judgment that relied on “expert” declarations, which often consisted of two or three conclusory paragraphs. Starting with Kelley, the courts sent a warning to moving parties that such declarations are insufficient and must provide a reasoned explanation for the expert’s opinion. Garibay has taken another step in that direction in concluding that a declaration without admissible medical records is not enough.

Responding plaintiffs also need to take heed. If the expert declaration submitted by a defendant without evidentiary support is insufficient, then a responding declaration must also satisfy this burden. Does that mean that every motion will be accompanied by a truckload of medical records? We should not have to go that far but the motion (and opposition) must be supported by evidentiary facts.

Stay tuned . . .

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Medical Malpractice Defense Attorney

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