Fernandez v. Alexander (Jan. 28, 2019, No. B283949) __Cal.App.5th___ [2019 WL 336517]
Plaintiff Victoria Fernandez sought medical treatment for a fractured wrist from Dr. Charles Alexander, an orthopedic surgeon who recommended placing the wrist in a cast. Fernandez later sued Dr. Alexander for professional negligence, alleging that her wrist was in worse condition after the cast was removed, and that Dr. Alexander negligently failed to recommend and perform surgery on her wrist. Dr. Alexander moved for summary judgment, relying on the declaration of a medical expert who opined that nothing Dr. Alexander did or failed to do caused any harm because either course of treatment (a cast or surgery) might require more surgery. Fernandez opposed the motion, relying on the declaration of a medical expert who opined that Dr. Alexander breached the standard of care by not recommending surgery, which caused further deformation of Fernandez’s fractured wrist. The trial court granted summary judgment, ruling that Fernandez’s expert opinion evidence was too conclusory and speculative to create a triable issue regarding medical causation. Fernandez appealed.
The Court of Appeal affirmed. First, the court held that Dr. Alexander satisfied his burden of making a prima facie showing that Fernandez could not establish causation. The court then held that Fernandez failed to produce a competent expert declaration to the contrary. The court explained that Fernandez’s expert declaration regarding causation was a barebones statement: it did not explain how Dr. Alexander’s specific actions resulted in the injury or how an initial surgery would have produced a better outcome. Accordingly, the trial court properly granted summary judgment.
Prepared by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy, LLP
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