Stevens v. Yoshida

Filed 10/30/06 Stevens v. Yoshida CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Jean E. Matusinka, Judge. Reversed with directions.

The Law Office of Andrew M. Rosenfeld and Andrew M. Rosenfeld for Plaintiff and Appellant.

Carroll, Kelly, Trotter, Franzen & McKenna, John C. Kelly, David P. Pruett, and Jeremiah J. House for Defendants and Respondents.

____________________

INTRODUCTION

Plaintiff Anneli H. Stevens appeals from a summary judgment in favor of defendants Gregory M. Yoshida, M.D., and Orthopedic Institute Medical Group.[1] We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On June 7, 2004, plaintiff in pro. per. filed a complaint for damages for medical malpractice and negligence and life changing injuries.[2] Plaintiff alleged that she was injured in a motor vehicle accident on July 10, 1999 in North Carolina. She was initially treated at a North Carolina hospital and returned home to California in August 1999. She saw Dr. George Thompson, was referred to physical therapy, and her physical therapist referred her to defendant, an orthopedic surgeon. Plaintiff’s first cause of action was for malpractice and negligence, alleging that in 1999 defendant misdiagnosed her as having intractable pain even though medical records showed a compression fracture to the first lumbar vertebra, L1, and cervical spine abnormalities, particularly at C5 and C6. Plaintiff alleged that defendant’s pain diagnosis was made subsequent to defendant’s first diagnosis of cervicothoracolumbosacral strain/sprain syndrome. She alleged that the strain/sprain diagnosis was conveyed to her North Carolina accident attorneys and negatively affected her negotiations for settlement with the at-fault motorist’s insurance company.

In her second cause of action, plaintiff alleged that she suffered life-changing injuries and damages as a result of defendant’s misdiagnosis and failure to treat her with, or at least inform her of, Kyphoplasty and to treat her for, or at least inform her of, the serious cervical spine abnormalities, particularly at C5 and C6. Plaintiff alleged that, due to defendant’s negligent medical services, she was unable to work and became “money wise broke” and had to wait on pursuing further medical care until she obtained Medi-Cal benefits. After she obtained Medi-Cal, she saw Dr. Anselmo Pineda, a neurosurgeon, about her pain in her back and her neck. After viewing reports obtained by defendant in 1999, Dr. Pineda promptly diagnosed her in June 2003 as having an L1 compression fracture and cervical spine abnormalities, particularly at C5 and C6. After a brief trial of additional pain therapies, in December 2003, Dr. Pineda performed a surgical procedure called Kyphoplasty on the L1 fracture. Plaintiff alleged that, as a result, over a few months time, her back pain decreased markedly to a “bearable” level.

Plaintiff alleged further that thereafter, in June 2004, she asked defendant why he did not mention to her in 1999 that the pain could be from the L1 fracture and suggest surgery to her. Defendant responded that he made his decision based solely on the bone scan, and although he knew about the surgery, he did not mention the L1 fracture as cause of her pain or inform her of the surgery options because he believed it would not help. Plaintiff alleged that defendant’s failure to mention the L1 fracture as a part of his diagnosis and to the other driver’s insurance company was negligent and caused her significant damage. In reply to plaintiff, defendant allegedly stated, “so I was wrong.”

On February 7, 2005, defendants filed a motion for summary judgment together with their medical expert’s declaration, his curriculum vitae and defendants’ separate statement of undisputed facts. Defendants asserted that plaintiff’s malpractice claim required competent testimony of a physician in order to overcome the testimony of defendants’ medical expert, Kevin M. Ehrhart, M.D., that the medical care and treatment that defendant rendered to plaintiff was at all times well within the standard of care. Defendants asserted that plaintiff was unable to meet her burden of proof as to both standard of care and causation, essential elements of her case. Dr. Ehrhart stated in his declaration: “Based upon my review of all of the materials in this case, it is my opinion to a reasonable medical probability that the care and treatment provided to the patient by Dr. Yoshida was within the standard of care in the community . . . . It is also my opinion that no negligent care or treatment, or failure to provide any care or treatment on the part of Dr. Yoshida caused or contributed to any injury or damages to the patient.”

On April 21, 2005, plaintiff filed her opposition to defendants’ summary judgment motion. Plaintiff attached the declaration of her medical expert, Carl Warren Adams, M.D., and his curriculum vitae. In her opposition memorandum of points and authorities, plaintiff asserted that “[she] submitted and filled [sic] a serperate [sic] statement of undisputed material facts and evidence. . . . Plaintiff set forth a list of those facts proffered by the moving party, which plaintiff is disputing, together with the . . . factual evidence supporting her dispute.” (Italics added.) A document entitled Separate Statement of Undisputed Material Facts, with a verification attached, was filed by plaintiff on April 13, 2005. Also in her opposition memorandum, plaintiff addressed not only defendant’s actions with regard to the L1 compression fracture, but also her cervical vertebrae injury. Plaintiff asserted that she “was cured in 12/19/03 by having Kyphoplasty surgery on the L1 vertebrae [sic], but she will need a cervical lamenectomy [sic] in the near future, for which she does not know the exact cost yet, maybe $35,000.00 to $50,000.00. Both injuries were caused by the 07-10-99 car accident and both injuries should have been treated in 1999, early 2000 by Dr. Yoshida thru surgery.”

On April 26, 2005, the hearing on defendants’ motion for summary judgment was held.[3] The trial court then issued a minute order stating defendants’ motion for summary judgment was granted, based upon two rulings. First, plaintiff’s expert, Dr. Adams, was not qualified to render opinions regarding standard of care in this case, in that he is a cardiovascular surgeon from Colorado, not an orthopedic surgeon or a surgeon who performs orthopedic or spinal surgeries, and he has no experience in Southern California. Second, plaintiff did not submit a separate statement of disputed facts.

DISCUSSION

We review a summary judgment ruling de novo and thus on appeal, we look beyond the parties’ contentions as well as the trial court’s rationale for its ruling and independently determine if summary judgment is merited based on the record before us. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142; Zavala v. Arce (1997) 58 Cal.App.4th 915, 925; Stratton v. First Nat. Life Ins. Co., supra, 210 Cal.App.3d at p. 1083.) Code of Civil Procedure section 437c, subdivision (c), requires the trial court to grant summary judgment in a case if the papers submitted on the motion show that no triable issue exists as to a material fact and the moving party is entitled to judgment as a matter of law. When the defendant is the moving party, the defendant’s affidavits and other evidence must either demonstrate an absence of an essential element of the plaintiff’s case or establish a complete defense to the plaintiff’s action. If they fail to do so, summary judgment must be denied. (Stratton, supra, at p. 1083.) If the defendant meets his burden, then the burden shifts to the opposing plaintiff to show that a triable issue of material fact exists as to the cause of action or the defense. (O’Byrne v. Santa Monica-UCLA Medical Center (2001) 94 Cal.App.4th 797, 804.) If the plaintiff fails to make such a showing, then summary judgment should be granted. (Stratton, supra, at p. 1083.)

With respect to the evidence offered by either party to meet its burden, Code of Civil Procedure section 437c, subdivision (d), provides that “[s]upporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in [them].” When the defendant is the moving party, the defendant’s affidavits are strictly construed by the trial court, and the opposing plaintiff’s affidavits are liberally construed; any “doubts about the propriety of granting the motion are resolved by denying summary judgment, due to the drastic nature of the procedure.” (Stratton v. First Nat. Life Ins. Co., supra, 210 Cal.App.3d at p. 1083.) “These general principles also apply to an appellate court’s review of a summary judgment ruling, except that an appellate court examines the facts presented to the trial judge on a summary judgment motion and independently determines their effect as a matter of law. [Citation.] . . . We are not bound by the trial court’s stated reasons, if any, supporting its ruling; we review the ruling, not its rationale. [Citation.]” (Ibid.)

In the instant case, the trial court stated two factors which supported the granting of summary judgment. First, the trial court found that plaintiff’s expert, Dr. Adams, was not qualified to give expert testimony and thus his declaration was inadmissible as evidence to support plaintiff’s allegations. The second factor was that plaintiff failed to file a separate statement of disputed facts as required by Code of Civil Procedure section 437c, subdivision (b)(3). We will first address Dr. Adams’ qualifications as an expert, in that his testimony was vital to establishing that triable issues of material facts remain.

Expert Qualification

Both statutes and judicial opinions have addressed the elements relevant to the qualification of a medical expert. Evidence Code section 720, subdivision (a), states that “[a] person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” The California Supreme Court has recognized that there has been an “unmistakable general trend in recent years . . . toward liberalizing the rules relating to the testimonial qualifications of medical experts.” (Brown v. Colm (1974) 11 Cal.3d 639, 645.) The Supreme Court has upheld, for example, a trial court’s ruling that a toxicologist was qualified to give testimony as to cause of death and as to the effect of hypertension on kidney function. (People v. Catlin (2001) 26 Cal.4th 81, 131-132.) “The competency of an expert ‘is in every case a relative one, i.e., relative to the topic about which the person is asked to make his statement.’ [Citation.]” (Huffman v. Lindquist (1951) 37 Cal.2d 465, 476-477.)

Dr. Adams’ qualifications were enumerated in his lengthy curriculum vitae, which plaintiff filed in support of Dr. Adams’ declaration. In its minute order documenting the granting of summary judgment, the trial court ruled that Dr. Adams was not qualified as an expert in this case. The trial court indicated its ruling was based on facts from his curriculum vitae indicating that Dr. Adams is a cardiovascular surgeon from Colorado, has no professional experience in Southern California, is not an orthopedic surgeon, and does not perform orthopedic surgeries or surgeries of the spine.

Our review of Dr. Adams’ curriculum vitae, however, also reveals that Dr. Adams has been licensed to practice medicine in California since 1987. He performed cardiovascular and thoracic surgery in San Francisco from 1987-1989 and at a hospital in Eureka and Redding from 2000 to 2005. Dr. Adams practiced as a trauma surgeon in Monterey, California from 1986-1987. He is board certified by the American Board of Surgery since 1987 and recertified in 1997, the American Board of Thoracic Surgery since 1991 and recertified in 1999, and two specialty subdivisions of the American Board of Surgery, Surgical Critical Care since 1992 and a vascular surgery subdivision since 1990. Dr. Adams is a Fellow of The American College of Surgeons and The International College of Surgeons, as well as a member of various medical societies. He has authored numerous medical articles, books, and lecture presentations. He served as Chief of the Department of Cardiothoracic and Vascular Surgery as well as Chief and Surgical Director of the Surgical Intensive Care Unit, for Tripler Army Medical Center from 1989 to 2002. Dr. Adams commanded a combat surgical team in Iraq during Desert Storm and has served in other military trauma services.

In summary, plaintiff’s foundational information indicates that Dr. Adams has been actively involved in the practice of sophisticated surgical medicine through 2005 and that his experience has included trauma surgery, as well as general cardiovascular and thoracic surgery. In addition, he has experience practicing at three hospitals in California for a combined total of eight years, and he has a current medical license in California, as well as current affiliation with a California hospital.

As the trial court noted, Dr. Abrams’ curriculum vitae does not expressly indicate that he is an orthopedic surgeon or experienced in spinal surgery. He lists professional presentations related to spinal and orthopedic surgery, including, in 1982 “C1-C2 Lateral Cervical Puncture for Subarachnoid Access” and, in 1986, “Traumatic Hemipelvectomy, A Multidiscipline Approach to Team Medical and Surgical Management.” In comparison, defendant’s expert, Dr. Ehrhart, is an orthopedic surgeon, but there is nothing in his curriculum vitae or declaration that indicates he is experienced in performing spinal surgeries. In Dr. Ehrhart’s curriculum vitae, the only related reference is the listing of a 1979 presentation he made on medicine and physical therapy and cervical spine injuries. Dr. Abrams’ lack of credentials as an orthopedic surgeon is an insufficient basis for disqualifying him as an expert in the instant case.

It has been recognized that a physician may be qualified to give expert testimony even though the physician is not a specialist of the same specialty as a defendant doctor: “Where the allegations of negligence concern matters within the knowledge and observation of every physician and surgeon and ‘not to a special course of treatment to be tested by the teachings and doctrines of a particular school,’ the testimony of a non-specialist physician can still aid the trier of fact in its search for the truth. [Citation.]” (Miller v. Silver (1986) 181 Cal.App.3d 652, 661.) The California Supreme Court in Mann v. Cracchiolo (1985) 38 Cal.3d 18 held that a diplomate of surgery and neurosurgery was qualified to give expert medical testimony as to the standard of care in reading X-rays, in submitting X-ray reports, and in diagnosing, and the trial court abused its discretion in finding there was no foundation for the doctor’s testimony. (Id. at pp. 38-39.) If Dr. Abrams has little or no experience in diagnosis and surgical treatment of patients with lumbar and cervical spine injuries, such as those at issue here, “the question of the degree of his knowledge goes to the weight of his testimony rather than to its admissibility.” (Brown v. Colm (1974) 11 Cal.3d 639, 643.)

Given Dr. Adams’ substantial and varied surgical training and experience, it is reasonable that Dr. Adams would be sufficiently qualified to render professional judgments, as he did in the instant case, regarding diagnosing and treating spinal column fractures and abnormalities in a timely manner; adequately assessing complaints of bilateral lower extremity numbness, paresthesia and pain; obtaining timely consultations from neurosurgeons when circumstances warrant them; informing a patient of other diagnostic and surgical alternatives; and informing a patient of the severity of a cervical abnormality and the likelihood that surgery may be required. “[I]f a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes to the weight of his testimony rather than to its admissibility.” (Brown v. Colm, supra, 11 Cal.3d at p. 643.) While trial courts have an obligation to limit expert testimony to the area of expertise and to require an adequate foundation for the opinion, “[i]t is prejudicial error to exclude relevant and material expert evidence where a proper foundation for it has been laid, and the proffered testimony is within the proper scope of expert opinion.” (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523.)

Where, as here, a plaintiff’s entire case rested on a sole medical expert, the California Supreme Court held that “the exclusion of the sole expert relied upon by a party because of an erroneous view of his qualifications is, in a case where expert testimony is essential, an abuse of discretion as a matter of law requiring reversal.” (Brown v. Colm, supra, 11 Cal.3d at p. 647.) Based on the foregoing analysis and discussion, we conclude that the record supports a finding that Dr. Adams is sufficiently qualified as a medical expert to render his opinion admissible in the instant case. It was an abuse of discretion to find that he was not qualified and to exclude his declaration from evidence to support plaintiff’s claims. Reversal of the summary judgment on this basis is required. (Ibid.) Given the substantive conflict between Dr. Adams’ opinion and Dr. Ehrhart’s opinion, admitting Dr. Adams’ declaration into evidence would have shown that triable issues of material fact remain.

Separate Statement of Disputed Facts

We will address the second reason given by the trial court for granting summary judgment, to wit, plaintiff failed to file a separate statement of disputed facts. It is important to clarify that summary judgment is not justified on such grounds under the facts in this case. Code of Civil Procedure section 437c, subdivision (b)(3), requires that an opposing party must file such a separate statement, and if the party fails to do so, the trial court has discretion to grant the summary judgment motion.[4] Additional content and format requirements are given in California Rules of Court, Rule 342(f).[5] Review of the record shows that plaintiff did file a statement apparently intended to meet the requirements of Code of Civil Procedure section 437c, subdivision (b)(3), for an opposing party’s separate statement. Plaintiff’s primary error appears to be entitling the document “Separate Statement of Undisputed Material Facts.” (Italics added.) In her opposition to the motion, plaintiff stated that, in the document, “[p]laintiff set forth a list of those facts proffered by the moving party, which plaintiff is disputing, together with the . . . factual evidence supporting her dispute.” (Italics added.) In the document, plaintiff identified each factual dispute in one column and cited supporting evidence in the record in a second column.

At the time plaintiff filed her separate statement, other than its title, its deficiency, if any, was the extent to which it failed to specify clearly the nature of its dispute, in compliance with requirements of California Rules of Court, rule 342(f). A trial court’s grant of summary judgment because the opposing party failed to comply with the requirements for a separate statement is reviewed for an abuse of discretion. (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1208.) A trial court does not have discretion to grant summary judgment solely as a result of the party’s failure to include in its separate statement an explanation of the nature of the dispute and sufficiently specific citations to evidence supporting its position. (Id. at pp. 1214-1215.) Rather, the party should be given the opportunity to file a proper separate statement rather than have judgment rendered against the party based on the party’s procedural error. (Id. at p. 1211.) Thus, the deficiencies in plaintiff’s separate statement are insufficient to justify the granting of summary judgment.[6]

The summary judgment is reversed and the matter is remanded to the trial court for further proceedings. Plaintiff is to recover her costs on appeal.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

MALLANO, Acting P. J.

VOGEL, J.

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[1] All references to a singular defendant herein are to Gregory M. Yoshida, M.D.

[2] Plaintiff engaged counsel in October 2004 after defendants answered. The attorney was relieved as counsel in November 2004. Plaintiff continued in pro. per., including throughout the summary judgment proceedings, until she engaged counsel thereafter to represent her on appeal.

[3] Plaintiff has elected not to provide the reporter’s transcript as part of the record on appeal. Defendant claims that without the transcript, the record on appeal is inadequate to determine whether the trial court abused its discretion in excluding the declaration of plaintiff’s expert. The transcript is not needed, in that we review the trial court’s ruling, not its rationale. (Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal.App.3d 1071, 1083.)

[4] Code of Civil Procedure section 437c, subdivision (b)(3), states: “The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.”

[5] California Rules of Court, rule 342(f) sets forth content and format requirements for an opposing party’s separate statement as follows: “Each material fact claimed by the moving party to be undisputed must be set out verbatim on the left side of the page, below which must be set out the evidence said by the moving party to establish that fact, complete with the moving party’s references to exhibits. On the right side of the page, directly opposite the recitation of the moving party’s statement of material facts and supporting evidence, the response must unequivocally state whether that fact is ‘disputed’ or ‘undisputed.’ An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. That evidence must be supported by citation to exhibit, title, page, and line numbers in the evidence submitted.”

[6] Inasmuch as the summary judgment must be reversed based on the exclusion of Dr. Adams’ declaration, we need not address the remainder of plaintiff’s contentions.

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.