Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LC073973. James A. Kaddo, Judge.
Levitt, Leichenger & Aberle, Douglas S. Aberle and Jon M. Steiner for Plaintiffs and Appellants.
Rushfeldt, Shelley & Drake, Kenneth W. Drake, Kenneth R. Myers; Kenneth W. Drake & Associates, Inc. and Kenneth W. Drake for Defendant and Respondent.
ASHMANN-GERST, J.
This lawsuit arises out a back injury suffered by appellant Burton Brenner (Burton) at the Encino-Tarzana Regional Medical Center (medical center) and the resulting loss of consortium suffered by Barbara Brenner (Barbara). The Brenners claim that Burton was injured by the negligence of the medical center’s computerized axial tomography technician, Julio Villa (Villa). The trial court granted summary judgment for the medical center. On appeal, the Brenners contend that there are triable issues of material fact. We agree and reverse.
We refer to Burton and Barbara collectively as the Brenners.
FACTS
The Brenners’ complaint
The Brenners sued the medical center for negligence and loss of consortium. In broad conclusions, they alleged: On October 5, 2004, Burton went to the medical center for treatment. He was sent to undergo a CT scan. Due the medical center’s negligence, the Brenners were damaged.
Motion for summary judgment
The medical center represented the facts of the case as these: At 2:15 p.m., Burton was admitted to the medical center due to a reported seizure. A CT scan was ordered for the purpose of ruling out a brain bleed. Villa asked Burton if he wanted assistance in scooting from a gurney onto a CT table. Burton said he wanted to do it himself. When he tried to move, he nonverbally complained of pain by gesturing to his back. Once Burton transferred to the CT table, Villa explained the imaging procedure, secured Burton’s head in the headrest, and strapped him down. After the CT scan was complete, Burton transferred himself from the CT table back to the gurney. Burton complained of back pain at 6:30 p.m. Tests revealed that he had compression fractures in the twelfth thoracic and third lumbar vertebrae.
To defeat Burton’s claim of negligence, the medical center argued that Villa did not breach the standard of care. The medical center offered the declarations of Villa and a CT expert, Michael Woo (Woo).
Villa declared that Burton moved from the gurney to the CT table by himself. Villa further stated that “nothing untoward happened,” and at no time did Burton fall. Woo declared that his review of documents revealed that Burton moved to the CT table by himself. According to Woo, Villa met the standard of care for a CT technologist as it existed in 2004.
The Brenners’ opposition
The Brenners argued that there was a triable issue regarding whether Villa met the standard of care. They offered excerpts from Burton’s deposition. He testified that Villa pushed him onto the CT table.
The ruling
After hearing oral argument, the trial court granted the medical center’s motion for summary judgment. The minute order stated: “[The Brenners’] complaint is for medical negligence, not for general negligence associated with simply moving him from the gurney to the CT table. The excerpts from [Burton’s deposition] show that he was allegedly injured while being positioned on the CT [t]able, not in the transfer from the gurney. However, [the Brenners’] opposition papers do not present an expert declaration to rebut the expert declaration of [the medical center]. [The Brenners] can defeat the motion only with a declaration by another properly qualified expert.” The minute order explained that even if the action was one for general negligence, the opposition would fail because the contradictions between Villa’s declaration and Burton’s deposition were immaterial.
Judgment was entered.
This timely appeal followed.
STANDARD OF REVIEW
A trial court’s ruling on a motion for summary judgment is reviewed de novo on appeal. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) The moving party’s declarations are strictly construed, the opposing party’s declarations are liberally construed, and doubts regarding the propriety of granting summary judgment are resolved in favor of the opposing party. (ML Direct, Inc. v. TIG Specialty Ins. Co. (2000) 79 Cal.App.4th 137, 141.) Like the trial court, “[w]e first identify the issues framed by the pleadings, since it is these allegations to which the motion must respond. Secondly, we determine whether the moving party has established facts which negate the opponents’ claim and justify a judgment in the movant’s favor. Finally, if the summary judgment motion prima facie justifies a judgment, we determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citation.]” (Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.)
DISCUSSION
1. Negligence.
The Brenners contend that there is a triable issue of material fact regarding whether Villa breached the standard of care. The question is whether Burton’s deposition sufficiently contradicted Woo’s declaration. It did. Thus, we conclude that the negligence action must be remanded.
a. The law regarding expert opinions.
Expert testimony is the only method of proving compliance with or a breach of a duty of care when the matter is beyond the common experience of lay people. (Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 702.) In general, experts state their opinion based upon facts given in a hypothetical question. “Such a hypothetical question must be rooted in facts shown by the evidence.” (People v. Gardeley (1996) 14 Cal.4th 605, 618.) “[E]ven when the witness qualifies as an expert, he or she does not possess a carte blanche to express any opinion within the area of expertise. [Citation.] For example, an expert’s opinion based on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors [citation], has no evidentiary value [citation] and may be excluded from evidence. [Citations.] Similarly, when an expert’s opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an ‘expert opinion is worth no more than the reasons upon which it rests.’ [Citation.]” (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117 (Jennings).)
b. Woo’s opinion does not support summary judgment.
In order to prevail on a claim for professional negligence, a plaintiff must establish a duty to use the skill and prudence of those in the profession, a breach of that duty, resulting injury and damage. (Gami v. Millikin Medical Center (1993) 18 Cal.App.4th 870, 877.) In seeking summary judgment, the medical center offered Woo’s opinion to negate breach. But in concluding that Villa met the standard of care, Woo assumed that Villa did not touch or push Burton onto the CT table, and Woo’s opinion was only as good as its foundation. Woo’s factual assumption was contradicted by Burton’s deposition testimony. His opinion, therefore, was based on speculation about what actually transpired and, pursuant to Jennings, lacked evidentiary value (at least for purposes of summary judgment). This left a triable issue as to whether Villa breached a duty of care by pushing Burton onto the CT table.
c. The medical center’s arguments are unavailing.
In an effort to defend its judgment, the medical center puts forth a series of arguments. We address them below.
The medical center contends that the Brenners must lose because they neglected to offer a declaration from a qualified CT technician expert stating that Villa breached the duty of care. We disagree.
It is true, as the medical center points out, that “[i]n professional malpractice cases, expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care [citation], except in cases where the negligence is obvious to laymen. [Citation.]” (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.) Also, “‘[w]hen 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.’ [Citations.]” (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 985.) What the medical center ignores is that there is a triable issue regarding whether Villa breached the duty of care if he in fact pushed or otherwise touched Burton. As to that possibility, Woo offered no opinion. Thus, because the issue was left open, the Brenners were not obligated to offer an expert declaration to avoid summary judgment.
Next, the medical center complains that the Brenners try to manufacture a triable issue by suggesting that Woo’s declaration establishes a breach of care if Villa acted as he described in his own deposition. We need not reach this issue. Burton’s deposition testimony adequately supports a reversal.
Taking a different tack, the medical center suggests that the Brenners incorrectly assume that if Woo “stated that one course of action fell within the standard of care, then any different course of action must have breached the standard of care.” What the Brenners may or may not assume is not relevant to our analysis. All that matters is this: it is possible that Villa pushed Burton onto the CT table and no expert has opined whether that breached a duty of care. Consequently, it is possible that Villa could be found negligent.
According to the medical center’s appellate brief, it is immaterial whether Villa pushed Burton because “[t]here is no evidence from which it can be reasonably inferred that [Burton’s] fractures probably occurred during his transfer to the CT table.” But the level of trauma that can cause fractures is beyond the common experience of lay people. As a result, the issue must be resolved by medical experts. In essence, what the medical center has offered is argument doubling as a medical opinion regarding the element of causation. “‘It is axiomatic that argument is not evidence.’ [Citation.]” (People v. Stanley (2006) 39 Cal.4th 913, 961, fn. 10.) More importantly, the medical center did not submit a doctor’s declaration in connection with its papers below, so causation necessarily remains an open issue. Further, it is material because it is an element of the Brenners’ claims. “To be ‘material’ for purposes of a summary judgment proceeding, a fact must relate to some claim or defense in issue under the pleadings [citation], and it must also be essential to the judgment in some way.” (Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462, 470.)
The medical center suggests that it was entitled to summary judgment because the Brenners did not offer an expert’s declaration regarding causation. This argument seeks to alter the parties’ burdens and must be rejected. Because the medical center was the moving party, it bore the initial burden of making a prima facie case that negated causation. It did not do so.
In the medical center’s view, there are portions of Woo’s declaration not tainted by the dispute over whether Villa pushed Burton onto the CT table. Woo declared that he reviewed Villa’s declaration, Burton’s medical records and the medical center’s policies and procedures. At the end of his declaration, Woo opined that “nothing unusual or untoward happened” on the date of the incident and that Villa “complied with the applicable standard of practice as it applied to [the use of a CT].” The medical center argues that these portions of Woo’s declaration support summary judgment. We cannot concur. Woo did not review Burton’s deposition, nor did Woo opine that Villa met the standard of care even if he pushed Burton onto the CT table. Thus, no part of Woo’s opinion can triumph.
Setting up a straw man, the medical center argues that the Brenners should be barred from arguing res ipsa loquitur because they did not raise it below. The doctrine of res ipsa loquitur is an evidentiary presumption. (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825 (Brown).) In Elcome v. Chin (2003) 110 Cal.App.4th 310, 318, the court explained how it is applied when a medical defendant moves for summary judgment. Once the defendant meets its burden, the plaintiff can defeat the motion by “producing direct evidence of [the] defendant’s negligence and causation . . . or [by] producing evidence of the three elements of res ipsa loquitur.” (Ibid.) The three elements are: (1) the incident must be the type which generally does not happen absent someone’s negligence; (2) an agency or instrumentality within the defendant’s exclusive control must have caused the incident; and (3) the plaintiff must not have caused it. (Brown, supra, 4 Cal.4th at pp. 825–826.) The Brenners do not purport to argue res ipsa loquitur, nor could they. They contend that Burton was injured by Villa, not by an agency or instrumentality. Regardless, it is apparent from the record that they seek to prove negligence by direct evidence.
Last, the medical center argues that it will lead to absurd results if we hold that an opposing party can defeat summary judgment by disputing immaterial facts. That is not our holding. Further commentary is moot.
2. Loss of consortium.
Barbara’s loss of consortium claim is derivative from Burton’s negligence claim. Because his claim must be remanded, her claim must also be remanded. The medical center does not argue to the contrary.
DISPOSITION
We reverse summary judgment.
The Brenners shall recover their costs on appeal.
We concur: BOREN, P. J., DOI TODD, J.