Place v. Bernstein
Filed 7/18/13 Place v. Bernstein CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION THREE
ERIC PLACE,
Plaintiff
and Appellant,
v.
CLIFFORD BERNSTEIN,
Defendant
and Respondent.
B236424
(Los
Angeles County
Super. Ct.
No. NC054754)
APPEAL
from a judgment of the Superior Court
of
County, Judith A. Vander Lans, Judge. Reversed.
Mancini
& Associates, Timothy J. Gonzales; Benedon & Serlin, Douglas G.
Benedon, Gerald M. Serlin and Wendy S. Albers for Plaintiff and Appellant.
Bonne, Bridges,
Mueller, O’Keefe & Nichols and Joel Bruce Douglas for Defendant and
Respondent.
_________________________
Plaintiff
Eric Place sued defendant
Clifford Bernstein, M.D., among others, for medical malpractice after
developing tachycardia following a procedure known as accelerated opiate
neuron-regulation (AONR) to detoxify from his chronic dependency on
Oxycontin. Place contended that his
electrocardiogram (ECG or EKG)
name="_ftnref1" title="">[1]
performed before the AONR procedure revealed potential abnormalities that
showed a contraindication for the procedure.
Dr. Bernstein brought a motion for summary judgment supported by an
expert’s declaration stating that he met the applicable standard of care and
did not cause Place’s transient cardiomyopathy.
The trial court granted the motion after sustaining Dr. Bernstein’s
foundational objections to the admission into evidence of the expert
declarations Place submitted to oppose the motion. The trial court determined that Place’s
expert was not qualified to render an opinion and granted summary
judgment.
We
conclude the trial court erred in excluding the expert declarations Place
submitted based upon the principles recently articulated in
Southern California (2012) 55 Cal.4th 747 and in Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th
173. We further conclude the expert’s
declarations create triable issues of fact precluding
UNDISPUTED
MATERIAL FACTS
title="">[2]
Place
had a long-standing dependence on opiates, with a history of unsuccessful
efforts to get off narcotics. Place
consulted with Dr. Bernstein regarding rapid detoxification through the AONR
procedure.
Rapid
detoxification is a process where the “withdrawal from opiates is rapidly done
while the patient is under anesthesia, and the patient is given Naltrexone in
an effort to satiate the opiate receptors and thus cut-down on post-detox
craving amid the adjustment period which follows.†“The patient’s vital signs are
perioperatively controlled, inducing lower heart rates and blood pressure in
contemplation of the sympathetic storm which the body rapidly undergoes during
the process of an accelerated detoxification from opioid dependency.â€
1.
Place
was admitted to Pacific Hospital of Long Beach (Pacific Hospital) on
March 30, 2009,
name="_ftnref3" title="">[3]
where a medical history and physical examination was performed before the AONR
procedure. Place reported no history of
cardiac symptoms. The admitting EKG
issued from Pacific Hospital’s
cardiology department was reported to indicate “[n]ormal sinus rhythm.â€
The
AONR procedure was performed the following day.
2.
Post-Procedure
Tachycardia
On
April 2, two days after the AONR procedure, Place developed tachycardia, or
rapid heart rate, which is a known risk of the procedure. Place was treated by a cardiologist.
Place
was discharged from the hospital four days later when his heart function
returned to acceptable limits. The
discharge summary signed by Dr. Bernstein indicates the following: “The
patient’s original baseline EKG was performed on admission, 03/31/09 [sic], and an official copy was placed on the chart indicating
normal sinus rhythm with a rate of 65. The
patient did have a delayed progression across the V waves, but it seemed to fit
the patient body habitus which was tall and thin young male. Only after the patient had a cardiac event
noted below did the cardiologist over read the EKG stating that there was a
vertical axis T wave inversion in the anterior leads and may possibly be
ischemia.â€
The
baseline EKG (dated 3/30) included in the medical records reviewed by the
experts has handwritten notations stating: “vertical axis T-inversion Anterior
Leads . . . consider ischemia.†There also is a handwritten notation adding
“ab†before the term “normal†in the typed heading stating “NORMAL ECG.â€
Based
upon these facts, Place filed a medical malpractice complaint against
Dr. Bernstein, Pacific Hospital, and the two cardiologists who treated him
following the AONR procedure.
name="_ftnref5" title="">[5]
PROCEDURAL
HISTORY
1.
The
Summary Judgment Motion
Dr.
Bernstein filed a motion for summary judgment on two grounds: (1) Place could
not establish a breach of duty because Dr. Bernstein’s treatment met the
applicable standard of care; and (2) Place could not establish causation
because nothing Dr. Bernstein did, or failed to do, caused Place’s
injury. In support of the motion,
Dr. Bernstein asserted that Place had been “adequately evaluated and
worked-up and prepared for the procedure,†within the standard of care, and
Place’s cardiac event was a known risk of the AONR procedure. In opposition, Place countered that Dr.
Bernstein’s treatment fell below the standard of care because he failed to read
the baseline EKG, which showed potential abnormalities, failed to have the
baseline EKG read by a cardiologist before the AONR procedure, and because the
baseline EKG showed potential abnormalities, failed to cancel the AONR
procedure to conduct further tests.
According to Place, Dr. Bernstein’s failure to read the baseline
EKG and take the appropriate steps was the cause of Place’s injury.
In
support of the motion, Dr. Bernstein submitted the declaration of board
certified anesthesiologist Ronald Wender, M.D., who is trained and experienced
in performing ultra-rapid opiate detoxification. No objections were made to Dr. Wender’s
declaration.
In
opposition, Place submitted the declaration of Robert Kahn, M.D., board
certified family practitioner. Dr. Kahn
is a professor with the UCLA School of Medicine, affiliated with several Los
Angeles area hospitals, and an “expert medical
consultant†with the Medical Board of California. Objections were filed concerning Dr. Kahn’s
qualifications to render an opinion.
2.
Dr.
Wender’s Declaration in Support of the Summary Judgment Motion
Dr.
Wender reviewed Place’s medical records.
On the basis of his education, training in ultra-rapid opiate
detoxification, and experience in performing hundreds of these procedures, Dr.
Wender opined that Place was evaluated within the applicable standard of care
before undergoing the AONR procedure.
Dr. Wender noted that Place had “what was reported [as] a normal
electrocardiogram.†After what Dr.
Wender describes as the “post-procedure cardiac event,†he stated that a
cardiologist read the EKG to find T-wave inversions in leads VI through
V3. Dr. Bernstein, however, did not have
the cardiologist’s interpretation of the EKG until after Place had been
medically cleared for the AONR procedure with a “normal†EKG. Dr. Wender stated the cardiologist’s
“interpretation is a non-specific finding, which can represent a normal
variant, and it is not, without more, a contraindication for AONR.â€
Dr.
Wender stated the AONR procedure is a stress to the organs, which is why before
undergoing the procedure, the patient’s heart rate is lowered through the use
of Clonidine because the body responds to detoxification with elevated heart
rates and high blood pressures. Dr.
Wender noted Place’s “heart responded to the detox with an intermittent
subclinical cardiomyopathy secondary to the stress of AONR.â€
Dr.
Wender was of the opinion that in treating Place, Dr. Bernstein complied with
standard of care, and Dr. Bernstein “was not a proximate, legal or substantial
factor in causing the complication which Mr. Place experienced, itself a known,
inherent risk†of the AONR procedure.
3.
Dr. Kahn’s
Declaration in Opposition to the Summary Judgment Motion
Dr.
Kahn also reviewed Place’s medical records and stated, based upon his training
and experience as a family practitioner and clinical professor at UCLA, that he
was familiar with the standard of care for physicians, nurses, and hospital
staff. Dr. Kahn noted the baseline EKG
performed before the AONR procedure revealed “a potential serious
abnormality.†He stated that “[w]ithout
further definition of the abnormal EKG, the AONR procedure was contraindicated
because,†the “AONR procedure is extremely stressful on the heart.†“As such, physicians, nurses and medical
staff must make sure a patient’s heart is in optimum condition prior to
undergoing the AONR procedure.†Based on
the foregoing, Dr. Kahn opined that Dr. Bernstein’s medical treatment was
below the standard of care.
Dr.
Kahn further opined: “It is also my
opinion, to a reasonable degree of medical probability that Defendant
Bernstein’s failure to meet the standard of care caused Plaintiff’s congestive
heart failure, which was manifested by an ejection fraction of 20% and an
elevated BNP following the AONR procedure on March 31, 2009.â€
4.
The
Summary Judgment Motion Hearing
The
trial court announced its tentative decision granting the summary judgment
motion based upon Dr. Wender’s expert testimony. In response, Place’s counsel argued Dr.
Kahn’s declaration created a triable issue of fact because he stated the
abnormal EKG was a contraindication for the AONR procedure. The court responded that objections had been
raised concerning Dr. Kahn’s qualifications, and Dr. Kahn failed to establish
any “knowledge regarding . . . the standard of care for anesthesia, cardiology
or rapid detox, nor any specific knowledge as to the standard of care relating
to the AONR procedure.†In response, Place’s
counsel cited Evans v. Ohanesian (1974)
39 Cal.App.3d 121, for the proposition that it did not matter whether Dr.
Kahn is a general practitioner or a specialist so long as he has knowledge of
the subject matter.
The
trial court took the matter under submission and gave both parties the
opportunity to brief Evans v. Ohanesian,
supra, 39 Cal.App.3d 121.
5.
Dr. Kahn’s
Supplemental Declaration
After
the matter was submitted, Place filed Dr. Kahn’s supplemental declaration in
which he stated he was familiar with the AONR procedure, having read and
researched the indications, contraindications, and potential complications of
that procedure. Objections were posed to
the submission of this supplemental declaration.
6.
The Trial
Court’s Ruling Granting Summary Judgment
The
trial court concluded that, based upon Dr. Wender’s expert testimony,
Dr. Bernstein met his burden to establish he had complied with the
standard of care and no act or omission on Dr. Bernstein’s part had caused
the cardiac event Place experienced after the AONR procedure.
Place,
however, failed to create a triable issue
of fact because the trial court sustained objections to Dr. Kahn’s declaration
on the ground that he was not qualified to render the opinions offered in his
declaration. The ruling states: “Defendant has properly objected to this
declaration as Dr. Kahn fails to establish that he has any knowledge regarding
the standard of care for anesthesia, cardiology or rapid detox, nor any
specific knowledge as to the standard of care relating to the AONR
procedure. Dr. Kahn merely states
that he is board certified in family medicine, he is a professor at UCLA, he
holds an appointment as an expert medical consultant to the Medical Board and
he is in private practice. Dr. Kahn
offers no facts to establish that he is qualified to render an opinion
regard[ing] the AONR procedure, anesthesia or cardiology. As such, Dr. Kahn has not sufficiently
established that he is qualified to render an opinion as to the care and
treatment provided to Plaintiff by Dr. Bernstein and Plaintiff has submitted no
other admissible evidence to raise a triable issue of material fact in
opposition to Dr. Bernstein’s motion.â€
The
trial court also sustained the objections to Dr. Kahn’s supplemental declaration
on the ground that Place was not given leave of court to submit additional
evidence.
Place
timely appeals from the judgment entered following the trial court’s order
granting Dr. Bernstein’s motion for summary judgment.
DISCUSSION
Place
contends the trial court erred in granting the summary judgment motion because
Dr. Kahn was qualified to testify, and Dr. Kahn’s declarations established
triable issues of material fact regarding Dr. Bernstein’s breach of the duty of
care and causation. More specifically,
Place contends that Dr. Bernstein breached his duty of care when he
(1) missed a potentially serious cardiac abnormality in the EKG before the
AONR procedure; (2) failed to consult a cardiologist before the AONR procedure;
and (3) based upon the abnormal EKG, failed to conduct further testing before
performing the AONR procedure. Because
Dr. Bernstein failed to meet the standard of care, Place maintains he suffered
tachycardia following the AONR procedure.
1.
Governing
Standards of Review
We
review the trial court’s grant of summary judgment de novo. (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860) (Aguilar). Summary judgment
is proper when the evidence shows the nonexistence of a triable issue of
material fact and the moving party is entitled to judgment as a matter of
law. (Code Civ. Proc., § 437c, subd.(c);
Aguilar, supra, at p. 843.) To
satisfy this burden, a defendant moving for summary judgment must establish
that one or more of the elements of a cause of action cannot be established or
that a complete defense exists to the cause of action. (Code Civ. Proc., § 437c, subd. (
supra, at p. 850.) If the defendant meets this burden, the
burden shifts to the plaintiff to show a triable issue of material fact exists
as to either the particular cause of action or the proffered defense. (Aguilar,
supra, at p. 850.)
In
determining whether the parties have met their respective burdens, the court
must consider all of the evidence, except that to which objections have been
made and sustained by the court, and all inferences reasonably deducible from
the evidence, except summary judgment may not be granted by the court based on
inferences reasonably deducible from the evidence, if contradicted by
inferences or evidence, which raise a triable issue as to any material
fact. (Code Civ. Proc., § 437c, subd.
(c).) “There is a triable issue of
material fact if, and only if, the evidence would allow a reasonable trier of
fact to find the underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.†(Aguilar,
supra, 25 Cal.4th at p. 850.)
“ ‘ “California
courts have incorporated the expert evidence requirement into their standard
for summary judgment in medical malpractice cases. When a defendant moves for summary judgment
and supports his motion with expert declarations that his conduct fell within
the community standard of care, he is entitled to summary judgment unless the
plaintiff comes forward with conflicting expert evidence.†’ [Citation.]â€
(Powell v. Kleinman (2007) 151
Cal.App.4th 112, 123.)
In
summary judgment proceedings, the weight of authority holds that appellate
courts review evidentiary rulings under an abuse of discretion standard.
v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, 1335.) A court’s decision to exclude expert
testimony is also reviewed for abuse of discretion. (Avivi
v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463,
467.) While the qualification of an
expert witness requires the trial court to exercise its discretion, the court
abuses its discretion by denying qualification if the witness demonstrates
sufficient knowledge of the subject to entitle his or her opinion to go before
the jury. (Id. at p. 472.)
2.
Dr.
Bernstein’s Expert Declaration Shifted the Burden
Healthcare
providers must exercise the degree of skill, knowledge, and care ordinarily
possessed and exercised by members of their profession under similar
circumstances. (Powell v. Kleinman, supra,
151 Cal.App.4th at p. 122.) In
“ ‘ “any medical malpractice action, the plaintiff must establish:
‘(1) the duty of the professional to use such skill, prudence, and diligence as
other members of his profession commonly possess and exercise; (2) a breach of
that duty; (3) a proximate causal connection between the negligent conduct and
the resulting injury; and (4) actual loss or damage resulting from the
professional’s negligence.’
[Citation.]†’
[Citation.]†(
Dr.
Bernstein moved for summary judgment on the grounds that Place could not
establish a breach of duty or a causal connection between his treatment and
Place’s injury. To support his motion,
Dr. Bernstein submitted expert testimony that the trial court concluded
satisfied his burden. We agree with the
trial court that the expert’s declaration was sufficient to shift the burden to
Place to raise a triable issue of fact.
3.
Place Met
His Burden to Show Triable Issues of Fact Exist
a.
Dr. Kahn
is Qualified to Render an Opinion
Place
contends the trial court erred in concluding that Dr. Kahn’s declarations
lacked foundation because he was not an
or experienced with the AONR procedure and therefore not qualified to testify
on the standard of care to which Dr. Bernstein was held.
his case. His theory was that the
applicable standard of care did not require specialized knowledge because Dr.
Bernstein’s alleged breach was the failure to read the baseline EKG before
performing the AONR procedure.
“The
rule that a trial court must liberally construe the evidence submitted in
opposition to a summary judgment motion applies in ruling on both the
admissibility of expert testimony and its sufficiency to create a triable issue
of fact.†(Garrett v. Howmedica Osteonics Corp., supra, 214 Cal.App.4th at p. 189; see also Powell v. Kleinman, supra,
151 Cal.App.4th at pp. 125-126.)
In
a medical malpractice case, a person is qualified to testify if he or she has
special knowledge, skill, experience, training, or education sufficient to
qualify on the subject to which the testimony relates. (Evid. Code, § 720, subd. (a).) This special knowledge, skill, experience,
training, or education may be shown by any otherwise admissible evidence. (Evid. Code, § 720, subd. (b).) An expert may base his or her opinion on any
matter “that is of a type that reasonably may be relied upon by an expert in
informing an opinion upon the subject to which his testimony relates, unless an
expert is precluded by law from using such matter as a basis for his
opinion.†(Evid. Code, § 801, subd.
(b).)
Citing
Miller v. Silver (1986) 181
Cal.App.3d 652, Place maintains that reading and interpreting an EKG addresses
a matter of shared medical ability or basic knowledge of all physicians, such
as the role of prophylactic antibiotics for patients prior to surgery. (Id.
at p. 661.) As far as this proposition
goes, we agree that Dr. Kahn is qualified to testify as an expert if the
standard of care is so broadly defined.
Here,
however, the standard of care must be determined in the context of the decision
to perform the AONR procedure.
Therefore, the standard of care is gauged by what is usually and
customarily done by physicians performing AONR procedures presented with a
pre-procedure baseline EKG that was reported as “normal.†(See Sinz
v. Owens (1949) 33 Cal.2d 749, 753.)
Liberally construing Dr. Kahn’s declarations, while he had never actually
performed the AONR procedure, he had practical knowledge that the AONR
procedure was stressful on the heart.
“Where a duly licensed and practicing physician has gained knowledge of
the standard of care applicable to a specialty in which he is not directly
engaged but as to which he has an opinion based on education, experience,
observation or association with that specialty, his opinion is competent.â€
v. Ohanesian, supra, 39
Cal.App.3d at p. 128.) Dr. Kahn had
sufficient knowledge to opine on whether having been presented with Place’s
baseline EKG, even though reported as normal, the study was a contraindication
for the AONR procedure or, at a minimum, required further patient evaluation
before performing the procedure. The
degree of his knowledge goes more to the weight of the evidence than to its
admissibility. Thus, the trial court
erred in concluding that Dr. Kahn was not qualified to testify as an expert.
b.
Dr. Kahn
Addresses Breach of Duty and Causation
In
a medical malpractice action, if a plaintiff establishes negligence he must
prove the defendant’s negligence was a cause-in-fact of the injury. (Jennings
v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108,
1118.) “ ‘[C]ausation must be
proven within a reasonable medical probability based [on] competent expert
testimony. Mere possibility alone is
insufficient to establish a prima facie case.’ †(Ibid.)
Dr.
Kahn reviewed the EKG and medical records, as did the defense expert. Dr. Kahn stated that Dr. Bernstein failed
to read the EKG, and if he had, he would have discovered that the EKG reflected
a potentially serious abnormality, which required further testing or a referral
to a cardiologist before performing the AONR procedure. Dr. Bernstein’s treatment, therefore,
constituted a breach of the standard of care.
“This is so because the AONR procedure is extremely stressful on the
organs, including the heart, and therefore the pre-AONR procedure work up must
be extremely cardio-protective.†Dr.
Kahn’s expert opinion establishes a triable issue of fact as to the issue of
negligence.
The
trial court, however, also concluded that as a matter of law, Place could not
prevail because “no act or omission on behalf of Dr. Bernstein caused any
injury to Plaintiff.†The defense expert
stated the complications Place experienced were a known risk following the AONR
procedure, which occurs in the absence of negligence. Dr. Bernstein, therefore, was not a
proximate, legal, or substantial factor in causing the complications that Place
experienced.
On
the issue of causation, Dr. Kahn reached the opposite conclusion, that is,
Dr. Bernstein’s “failure to meet the standard of care caused Plaintiff’s
congestive heart failure.†Because we
concluded Dr. Kahn’s declaration raises issues of fact with respect to whether
Dr. Bernstein breached the standard of care, Dr. Kahn’s opinion on causation is
adequately supported.
Dr.
Bernstein contends that Dr. Kahn’s conclusion is not based upon a reasoned
explanation, especially because he does not dispute that tachycardia is a known
risk of the AONR procedure. The argument
advanced is that Dr. Kahn’s declaration, at most, showed an alternative
treatment method when presented with Place’s baseline EKG, and did not explain
what treatment should have been given to avoid a known risk of the AONR
procedure. Specifically, Dr. Bernstein
argues that Dr. Kahn “needed to further show that what Dr. Bernstein did in his
care for [Place] was something no other respected specialist would have done under
same or similar circumstances, or that Dr. Bernstein failed to do something all
reputable practitioners would have exclusively and uniformly done in this
case.†Dr. Bernstein overstates the
necessary showing to oppose a summary judgment motion.
In
Powell v. Kleinman,
reversed a summary judgment in favor of a defendant doctor in a malpractice
case because the trial court erroneously excluded evidence from the plaintiff’s
expert’s declaration opposing summary judgment.
(Id. at pp. 127-128.) The court stated that while a defendant’s
expert’s declaration has to be detailed and with foundation in order to obtain
a summary judgment, a plaintiff’s expert’s declaration in opposition to a summary
judgment motion does not have to be detailed and is entitled to all favorable
inferences. (Id. at p. 125.) The court
emphasized that “we liberally construe the declarations for the plaintiff’s
experts and resolve any doubt as to the propriety of granting the motion in
favor of the plaintiff.†(
the plaintiff’s expert “opined that it is medically probable [that defendant’s]
care and treatment caused [plaintiff] injury.â€
(Id. at p. 129.) “However obtuse [the expert’s] declaration
may appear, as a party opposing summary judgment, [plaintiff] is entitled to
may be derived from it, which includes a reading of the declaration to state
that [plaintiff’s] injuries were caused by [defendant’s] conduct, which conduct
fell below the applicable standard of care.â€
(Ibid.)
Recently,
our division decided Garrett v. Howmedica
Osteonics Corp., supra,
214 Cal.App.4th 173, in which the plaintiff brought a products liability
action against the supplier of a prosthetic bone. We reversed summary judgment in favor of the
defendant. The defendant argued that the
plaintiff’s expert declaration was not admissible because it lacked a reasoned
analysis as he did not describe the testing methods used to reach his
conclusion. (Id. at 185.) We acknowledged
the court’s gatekeeping responsibility for expert testimony as set forth by the
Supreme Court in Sargon Enterprises, Inc.
v. University of Southern California, supra,
55 Cal.4th at page 781. (
Unlike
Sargon, in which the trial court
conducted an evidentiary hearing before excluding expert testimony,
testimony presented in opposition to a summary judgment motion. We concluded the absence of more specific
information on the expert’s testing methods did not justify the exclusion of
his testimony on the grounds that his conclusions were speculative,
conjectural, or lacked a reasonable basis.
(Garrett v. Howmedica Osteonics
Corp., supra, at pp.
187-189.) In reaching this conclusion,
we reiterated that “[i]n light of the rule of liberal construction, a reasoned
explanation required in an expert declaration filed in opposition to a summary
judgment motion need not be as detailed or extensive as that required in expert
testimony presented in support of a summary judgment motion or at trial.†(Id.
at pp. 183, 189.)
As
in Garrett, we conclude the trial
court failed to liberally construe the evidence submitted in opposition to the
summary judgment motion. Dr. Kahn not
only concluded it was more probable than not that Dr. Bernstein’s failure to
read the EKG before performing the AONR procedure caused Place’s cardiac event,
but he also stated the failure to consult with a cardiologist or to conduct
additional medical tests before performing the AONR procedure was below the
standard of care. Dr. Kahn’s opinions
should not have been omitted or deemed insufficient at the summary judgment
stage.
DISPOSITION
The
judgment is reversed. Place is entitled
to recover costs on appeal.
ALDRICH,
J.
We concur:
KLEIN,
P. J.
CROSKEY,
J.
the English acronym, and EKG is the acronym from the German word
“Elektrokardiogramm.â€
cites to his separate statement as the sole evidentiary support for some of his
factual assertions. “[A] separate
statement is not evidence; it refers
to evidence submitted in support of or opposition to a summary judgment
motion. In an appellate brief, an
assertion of fact should be followed by a citation to the page(s) of the record
containing the supporting evidence,†not to the separate statement. (Jackson
v. County of Los Angeles (1997) 60 Cal.App.4th 171, 178, fn. 4.)
