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Horvitz & Levy is a solutions-based firm focused on appellate success. We are distinguished by our commitment to responsive service and on-going innovation in the areas of civil appellate litigation, amicus curiae support, and trial strategy consultation.

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July 10, 2020

Plaintiff filed a medical malpractice action against a doctor for injuries she suffered during her colonoscopies. Defendant filed a summary judgment motion that included a declaration by an expert who, after reviewing plaintiff’s medical records, concluded defendant’s action were within the standard of care. The trial court granted the motion, finding defendant’s evidence, including the expert’s declaration, was sufficient to establish that defendant had in fact met the standard of care.

The Court of Appeal reversed, holding that a “bare conclusion of the defendant[’s] expert, unsupported by reasons or explanations, [i]s insufficient to show the defendants acted within the standard of care” and therefore failed to meet the defendant’s burden on summary judgment. The expert’s declaration merely stated that defendant met the standard of care and perforation is a “ ‘known risk of a colonoscopy.’ ” These statements failed to address plaintiff’s theory of liability, failed to “set forth the standard for determining whether a perforation—a known risk—has occurred, or what conduct is required to meet it,” and thus failed to explain the basis for the expert’s conclusion.