McAlpine v. Norman (June 22, 2020, C088327) __ Cal.App.5th __ [2020 WL 3833019]
Christi McAlpine filed a medical malpractice action against Dr. Daniel Norman for injuries stemming from colonoscopies that he performed. Dr. Norman moved for summary judgment based a declaration from a gastroenterology expert who reviewed the medical records and opined that Dr. Norman’s actions were “at all times” within the standard of care. The expert noted that McAlpine’s colon perforation was a known risk of a colonoscopy and that she gave informed consent for the procedure after being advised of that risk. McAlpine opposed the motion, but failed to submit any expert declarations. McAlpine also sought leave to amend her complaint to add (1) the physician who lacerated her liver and spleen during a follow-up emergency surgery, (2) a new cause of action against Dr. Norman for improperly delegating to his staff the duty to obtain her informed consent, and (3) additional factual allegations supporting her malpractice claim against Dr. Norman based on his failure to properly examine her colon for perforations before terminating the procedure. The trial court denied leave to amend and granted summary judgment. McAlpine appealed.
The Court of Appeal reversed, holding that the trial court improperly granted summary judgment based on the gastroenterologist’s opinion that was “unsupported by factual detail or reasoned explanation.” The court explained that the expert had failed to address whether Dr. Norman had negligently failed to detect the colon perforation, the standard for determining whether a perforation had occurred, and the type of conduct required to meet that standard. Although the expert opined that Dr. Norman “at all times” met the standard of care, that conclusory statement was insufficient to negate malpractice at the summary judgment stage.
The Court of Appeal affirmed the denial of McAlpine’s request to amend her complaint. First, McAlpine long knew about the physician who lacerated her liver and spleen during emergency surgery and had no adequate excuse for not suing him when she sued Dr. Norman. McAlpine similarly had no excuse for waiting until the eve of trial to raise the informed consent issue. Finally, while alleging additional factual support for her malpractice claim “might have been helpful to better frame the issues in the pleadings, it was not strictly necessary.” Therefore, the trial court did not abuse its discretion by denying leave to amend.
Prepared by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy, LLP
California Society for Healthcare Attorneys
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