The plaintiff, Ernesto Alvarado, experienced symptoms of headache, stiff neck, and hearing loss and was seen by many specialist physicians over a period of three months. On one of these visits, he was briefly seen by physician’s assistant Dean Wilson. Wilson was unable to complete the lumbar shunt tap he had been instructed to perform, and sent Alvarado to a radiologist to perform the procedure. Wilson also attempted to tap Alvarado’s cranial shunt, but the attempted tap was painful and Alvarado asked him to stop. Alvarado was dismissed from that hospital visit a few days later, with symptoms resolved. Roughly three months later, Alvarado suffered a severe and permanent vision loss caused by intracranial pressure on his optic nerve.
Alvarado sued numerous providers, alleging they all failed to perform additional eye examinations, which caused them to fail to diagnose his condition and resulted in the condition worsening and leading to blindness. In addition, Alvarado claimed Wilson committed a battery on him by proceeding with the cranial shunt tap after he told Wilson to stop. The trial court granted summary judgment for Wilson, finding the plaintiff’s expert declaration was insufficient to create a triable issue of fact as to Wilson’s negligence because it did not mention Wilson. The court also found Alvarado did not raise a triable issue of fact on the battery claim. Alvarado appealed from the grant of summary judgment and Horvitz & Levy was retained to represent Wilson on appeal.
The Court of Appeal reversed the summary judgment on the negligence claim, finding that the expert’s declaration could be interpreted as evidence that Wilson negligently failed to perform an eye exam, even though it did not mention Wilson. However, Horvitz & Levy convinced the appellate court to affirm the summary judgment of the battery claim because there was no evidence Wilson’s actions caused any damages to Alvarado. This meant that the intentional tort claim and its potential to carry punitive damages was eliminated from the case, and the remaining claims would be subject to MICRA.