Opinion
D076991
02-16-2021
DEBORAH GUTIERREZ, Plaintiff and Appellant, v. TIMOTHY L. GRADNEY, Defendant and Respondent.
Law Office of Lucila Enriquez and Lucila Enriquez for Plaintiff and Appellant. Brian P. Kamel & Associates, Brian P. Kamel and Yee Lam for Defendant and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT THE COURT:
It is ordered that the opinion filed February 16, 2021 be modified as follows:
1. On page 8, the fourth sentence of the first full paragraph beginning with "Other theories" is deleted and inserted with the following:
Other theories, such as lack of informed consent, physician abandonment, and negligent hiring/supervision do not apply to Gradney as pleaded; if her complaint can even be read to include these allegations, they implicate Smile San Diego and the dentists who run it.
2. On page 8, a new footnote 5 is inserted at the end of the sixth sentence ending with "other defendants." The text of footnote 5 is as follows:
5 The closest Gutierrez's complaint comes to describing a lack of informed consent is the following sentence: "Plaintiff who went in for a routine exam would not have agreed to this type of actual procedure had she known the employee was not qualified to perform the procedure or that no dentist was present to supervise the procedure." Elsewhere in the papers opposing the summary judgment motion, she elaborates that she considers Gradney unqualified because he was newly licensed, and she would not have consented to the cleaning if she understood the risks. But even if her pleadings could be interpreted to fairly raise all these issues, the two experts who reviewed the consent forms she signed concluded these forms demonstrated "informed consent [that] met the standard of care." As with other issues in this case, Gutierrez was then obligated to provide some evidence apart from her own declaration to challenge this conclusion and demonstrate a triable issue of fact existed as to her consent to the procedure.
There is no change in the judgment.
The appellant's petition for rehearing is denied.
McCONNELL, P. J. Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2018-00010549-CU-MT-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Ronald F. Frazier, Judge. Affirmed. Law Office of Lucila Enriquez and Lucila Enriquez for Plaintiff and Appellant. Brian P. Kamel & Associates, Brian P. Kamel and Yee Lam for Defendant and Respondent.
Defendant Timothy L. Gradney, a dental hygienist, was sued by plaintiff Deborah Gutierrez after he gave her an injection that allegedly caused nerve damage. Gradney defeated Gutierrez's medical malpractice action at the summary judgment stage by offering two expert declarations, each concluding he was not negligent. Gutierrez provided only on her own declaration in response. As her primary argument, she claims the trial court erred because her reliance on res ipsa loquitor excused her failure to present contrary expert opinion testimony that disputed Gradney's evidentiary showing.
In taking this position, Gutierrez suggests that res ipsa functions as a universal substitute for an expert opinion, when in fact the doctrine's applicability is often demonstrated through expert testimony. This case is one where an expert opinion was necessary to establish the foundation of her res ipsa theory. As such, once Gradney provided expert opinions that he was not negligent, Gutierrez was obligated to provide her own expert to establish the basis for application of the doctrine. Because she failed to do so, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Gutierrez went in one morning for a routine dental appointment at Smile San Diego. Her regular dentist, Dr. Javier Valadez, was running late so she was seen by Dr. Joseph R. Wisnieski instead. He evaluated her and recommended a deep cleaning procedure, to which Gutierrez agreed. The remainder of her appointment was with registered dental hygienist Gradney, who gave her three injections of a local anesthetic in conjunction with the cleaning procedure. According to Gutierrez, the first two injections were uneventful and Gradney began the cleaning. But when he paused to give her a third shot, there was an "instant pop" in her mouth followed by severe pain. Gutierrez reluctantly allowed Gradney to finish but had various symptoms from that point forward—including ongoing pain and swelling in her face and head, ear ringing, tearing in her left eye, dripping from her left nostril, and difficulty with facial control on the affected side.
Gutierrez filed a complaint alleging medical malpractice and general negligence by Smile San Diego, doctors Wisnieski and Valadez, and hygienist Timothy L. Gradney. She was initially self-represented but later retained counsel. Gradney moved for summary judgment, providing supportive expert declarations from doctors Edmond Hewlett and Stanley Malamed, who both concluded that Gradney's treatment of Gutierrez met the standard of care for hygienists in the dental community. Their opinions were based on reviews of declarations from the parties and Gutierrez's dental charts. Gutierrez's opposition to Gradney's motion was supported only by her own declaration, in which she maintained that Gradney's injection was negligently administered and damaged her trigeminal nerve—something she was apparently told by other doctors. She provided no expert declaration of her own, believing her reliance on res ipsa loquitor automatically entitled her to move past the summary judgment stage. The trial court granted Gradney's motion, noting that Gutierrez's failure to provide a competing expert opinion on the issue of negligence was fatal to her action.
These functionally collapse into one cause of action for medical malpractice. In a case such as this one, no helpful distinction can be drawn between ordinary and professional negligence because "the nature of the alleged breach of duty affects only the determination of the appropriate standard of care, which otherwise remains constant irrespective of the terminology used to characterize it." (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997 (Flowers).) Perhaps Gutierrez's use of a template to construct her complaint explains this redundancy. We treat Gutierrez's complaint throughout as comprising a single cause of action for medical malpractice.
The other defendants separately moved for summary judgment, but those matters are not before us on appeal.
DISCUSSION
We review the trial court's grant of a motion for summary judgment independently to determine "whether triable issues of fact exist to reinstate the action." (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) We look to the evidence before the trial court (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 716-717), construing the opposing party's submissions liberally and applying stricter scrutiny to the moving party's evidence, resolving doubts in favor of the former. (Wiener, at p. 1142.) When a defendant moves for summary judgment and demonstrates that the plaintiff cannot establish an essential element of a claim, the burden shifts to the plaintiff to show that a triable issue of fact exists as to the challenged element. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 604 (Hanson).) If the plaintiff fails to do so, "no amount of factual conflicts upon other aspects of the case will affect the result and the motion for summary judgment should be granted." (Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 415-416 (Willard).)
An action for medical malpractice requires the plaintiff to show four elements: (1) the medical professional's duty " 'to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise,' " (2) a breach of that duty, (3) an injury caused by the professional's negligence, and (4) resulting damages. (Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 877.)
For the purposes of a malpractice action, there is no legal distinction between dental and medical care. (Willard, supra, 121 Cal.App.3d at p. 413.)
In this case, Gradney contends his expert declarations were enough to demonstrate he was not negligent in his treatment of Gutierrez, thus shifting the burden to her to introduce some contrary evidence that created a triable issue of fact. He maintains that in light of the uncontradicted evidence, summary judgment in his favor was proper. Gutierrez counters in several ways, arguing that (1) Gradney's expert declarations were insufficient to shift the burden because they were conclusory and skirted the issue of her actual injury, (2) his motion failed to address some of her theories of liability, and (3) her reliance on res ipsa loquitor excused her from providing an expert opinion to demonstrate negligence. In our review, we conclude that (1) the expert declarations supported a determination that Gradney was not negligent notwithstanding the issue of Gutierrez's actual injury or its cause, (2) evidence that Gradney met the standard of care was dispositive under any theory of liability that applied to him, and (3) the plaintiff's reliance of res ipsa loquitor in this type of medical malpractice case does not nullify the need for at least some expert testimony. We consequently affirm the trial court's grant of summary judgment.
1. Expert Declarations
Gutierrez correctly points out that expert declarations are only as good as the reasons on which they are based. (Griffith v. Los Angeles County (1968) 267 Cal.App.2d 837, 847.) Declarations that do not state the basis or rationale for opinions offered are conclusory. (See, e.g., Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 306-308.) But that was not the case with the declarations from doctors Hewlett and Malamed. Both stated they based their opinions on their extensive experience in dentistry and their specific reviews of Gutierrez's treatment records, x-rays and the declarations from the parties. Based on these materials and their professional backgrounds, both noted that Dr. Wisnieski properly recommended a deep cleaning, that the procedure is one registered dental hygienists are qualified to perform, and that Gradney's three injections—both the type of medicine administered and the placement in the mouth—were appropriate and consistent with the standard of care for hygienists. Both doctors concluded there was no evidence in the record that Gradney's injections breached the standard of care.
Gutierrez seems to believe the declarations are irrelevant because they did not directly engage with her theory of the case—that Gradney's third injection caused her devastating nerve damage. Her position is an odd one given that these were the defense experts. But it is also misguided. Medical experts need not rule out alleged injuries in order to conclude there was no malpractice. It is well established that they can opine no negligence occurred when a patient's records do not indicate otherwise. In such cases, it is the absence of evidence of medical malpractice that provides the basis for the opinion. (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 509.) To require more would be tantamount to asking the expert to prove a negative. That Gradney's experts did not, based on Gutierrez's statement alone, assume she suffered nerve damage is not proof that they ignored her declaration. It merely indicates they relied for their medical opinions on the professional documentation associated with her procedure, which did not indicate negligence.
Gutierrez presses her point, arguing the declarations are insufficient because they "[f]ailed to [n]egate [c]ausation." We note here that an expert's opinion need not negate every element of a claim to support a motion for summary judgment. In any event, however, Gutierrez misses the main thrust of the declarations. The bulk of both statements focused on negligence, as each expert took pains to explain why the care Gutierrez received from both Dr. Wisnieski and Gradney complied with the standard of care. Although they briefly offered conclusions on causation with varying degrees of nuance, their shared opinion that Gradney was not negligent was sufficient to support his motion for summary judgment. Indeed, this was the focus of the court's rationale. Accordingly, we confine our discussion to the issue of negligence.
After both experts drew well supported conclusions that Gradney was not negligent, the burden shifted to Gutierrez to show a triable issue of fact as to that element. In the final section of this opinion, we explain that her reliance on res ipsa loquitor broadened her options for making such a showing, but did not excuse her from presenting any factual response. She cannot overcome this failure by attacking the defense experts or transferring her burden to them.
Relying on Garibay v. Hemmat (2008) 161 Cal.App.4th 735, Gutierrez further claims the expert opinions were based on unauthenticated dental records that did not comply with the business records exception to the hearsay rule. (Evid. Code, § 1271.) This contention is without merit. Garibay involved a summary judgment motion based solely on an expert's declaration, unaccompanied by any of the medical records it referenced. Here, in contrast, the records were attached to Dr. Wisnieski's declaration as an exhibit along with his statement of authenticity. (See Wicks v. Antelope Valley Healthcare District (2020) 49 Cal.App.5th 866, 870 [declaration from a custodian with records attached as exhibits were properly authenticated].) --------
2. Alternate theories of liability
Gutierrez insists that even if we find no fault with Gradney's expert declarations, his motion for summary judgment was incomplete because it failed to address her alternate theories of liability—notably, abandonment, lack of informed consent, and res ipsa loquitor. But this argument only reveals Gutierrez's tenuous grasp on the relationship between her theories of liability, her cause of action, and Gradney's obligation at the summary judgment stage. For the sake of clarity, we explain this relationship for each of the six concepts Gutierrez labels as theories of liability (though we do so without commenting on whether they were properly pleaded). We treat res ipsa loquitor separately, in the final discussion section of this opinion.
According to Gutierrez, there were six theories enumerated in her complaint: (1) joint and several liability, (2) breach of the standard of care (3) lack of informed consent, (4) abandonment, (5) negligent hiring and supervision, and (6) damages and injuries. Two of these, for breach of the standard of care and for damages and injury, are merely elements of a medical malpractice claim that she would have to prove if the case proceeded. Gradney only needed to successfully challenge one essential element to prevail. (Hanson, supra, 76 Cal.App.4th at p. 604.) Other theories, such as lack of informed consent, physician abandonment, and negligent hiring/supervision do not apply to Gradney; they implicate Smile San Diego and the dentists who run it. Indeed, Gutierrez does not allege that Gradney presented her with boilerplate consent forms, failed to disclose his own lack of skill, or abandoned her when she called the office to complain of ongoing pain. Her allegations on these points pertain to other defendants. As such, we need not further address them. Her last theory, joint and several liability, is a doctrine that allows " 'each tortfeasor whose negligence is a proximate cause of an indivisible injury [to be held] individually liable for all compensable damages attributable to that injury.' " (Leung v. Verdugo Hills Hospital (2012) 55 Cal.4th 291, 303.) Obviously, negligence and causation must still be demonstrated before damages come into play.
Ultimately, Gradney's showing that he was not negligent defeats every theory under which Gutierrez might make out a medical malpractice claim against him. The different theories, such as they are, do not implicate different standards of care. (Flowers, supra, 8 Cal.4th at p. 998 ["As to any given defendant, only one standard of care obtains under a particular set of facts, even if the plaintiff attempts to articulate multiple or alternate theories of liability."].) In light of the two expert declarations concluding he was not negligent and the absence of any contrary expert opinion, Gradney was entitled to summary judgment. (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.)
3. Res Ipsa Loquitor
Gutierrez relies heavily on the doctrine of res ipsa loquitor, asserting it excuses her failure to counter Gradney's experts with at least one of her own. She invokes the Supreme Court's decision in Bardessono v. Michels (1970) 3 Cal.3d 780 (Bardessono), contending it means res ipsa applies—superseding any need for expert medical testimony—whenever a routine injection causes an injury. But in doing so, she reads Bardessono too broadly. She also fails to account for a more similar case, Elcome v. Chin (2003) 110 Cal.App.4th 310 (Elcome), which guides our resolution here.
Before we discuss these cases in more detail, we provide a brief overview regarding use of the res ipsa doctrine in medical malpractice actions. Res ipsa loquitor, meaning " ' "the thing speaks for itself," ' " is a doctrine supporting an inference of negligence when an injury "was probably the result of negligence by someone and [the] defendant was probably the person who was responsible." (Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1540.) In California, the doctrine functions as an evidentiary presumption that permits a jury to infer a defendant's negligence caused whatever harm is at issue. (Evid. Code, § 646.) But the presumption only arises when there is evidence of the following conditions: the injury was (1) "of a kind which ordinarily does not occur in the absence of someone's negligence," (2) caused by something within the defendant's exclusive control, and (3) not due to any voluntary act or contribution by the plaintiff. (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825-826.)
Within medical malpractice cases, res ipsa enjoyed a period of popular application in the era where physicians were unwilling to disparage colleagues in court, even if they were "aware of a negligent cause" of an injury. (See Rubsamen, Res Ipsa Loquitur in California Medical Malpractice Law-Expansion of A Doctrine to the Bursting Point (1962) 14 Stan. L.Rev. 251, 280; see also Clark v. Gibbons (1967) 66 Cal.2d 399, 416, fn. 3 (conc. & dis. opn. of Tobriner, J.).) This expansive use of the doctrine salvaged meritorious actions from an otherwise insurmountable code of silence, but risked overzealous application; critics suggested it imposed something akin to strict liability on medical professionals under the guise of a circumstantial finding of negligence. (See generally Clark, at pp. 414-424 (conc. & dis. opns. of Tobriner, J. & Traynor, J.).) This particular tension, and the debates that animated it, subsided with the growing willingness of physicians to testify when the conduct of their peers amounted to substandard treatment of a patient. Complimenting this trend toward transparency, courts adhered to the principle that medical negligence can be assessed by laymen only in its most overt forms—such as a surgical object sewn up inside a postoperative patient. (Gannon v. Elliot (1993) 19 Cal.App.4th 1.) But generally, whether a physician was negligent is "a matter peculiarly within the knowledge of experts" and "can only be proved by their testimony," which is dispositive on the issue. (Flowers, supra, 8 Cal.4th at p. 1001.)
With this background in mind, we return to the case before us. As already noted, Gutierrez relies on Bardessono, supra, 3 Cal.3d 780, to argue that her case falls within the res ipsa doctrine—and thus absolves her of any responsibility to counter Gradney's experts with her own. In Bardessono, the plaintiff visited Dr. Michels after a few days of farm labor left him with soreness in his left shoulder. Over the course of three visits, she gave him a series of cortisone injections that prompted pain and then paralysis. He saw another physician, Dr. Burgess, who ran extensive tests and found evidence the paralysis was caused by trauma to a nerve center beneath the shoulder. It was possible Michels's injections were to blame. (Id. at pp. 784-786.) Although Burgess could not be certain as to the cause, he testified the injury Bardessono suffered was a type that ordinarily would not occur from shoulder injections absent some negligent administration. Dr. Gregg, a defense expert, provided a competing theory—that the plaintiff's strenuous exercise was the cause of his pain and paralysis. (Id. at p. 787.) The jury was then instructed that it could consider both the expert testimony and common knowledge about injections in determining whether Michels was liable. (Ibid.) The Supreme Court approved of the trial court's decision to give the res ipsa instruction. It surveyed other medical malpractice cases involving injections and concluded that, when an injection is a routine and "relatively simple" procedure, juries can rely on their common knowledge to assess negligence. (Id. at p. 793.)
In Gutierrez's view, Bardessono created a sweeping rule that plaintiffs who suffer any injury purportedly arising from an injection can rely on res ipsa loquitor alone to demonstrate their case—so long as the injection is a common one. Conversely, if the procedure is "unusual and complex," res ipsa would not apply. (Bardessono, supra, 3 Cal.3d at p. 790.) We understand that some of Bardessono's language could be read to support that interpretation. But such a reading would upend fundamental analytical principles of the res ipsa doctrine. After a careful review, we do not agree the words of the Bardessono court should be interpreted this way. It is far sounder to read the case in harmony with other Supreme Court precedent, which makes clear that the first and primary focus is on the nature of the injury before other considerations come into play—such as the relative complexity of a medical procedure.
In Zentz v. Coca Cola Bottling Co. of Fresno (1952) 39 Cal.2d 436, 446, our high court described that "res ipsa loquitur applies where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone." This is a doctrine of "common sense and human experience," not a "rigid legal formula." (Ybarra v. Spangard (1944) 25 Cal.2d 486, 489 (Ybarra).) The central focus is thus on the injury itself and any commonsense inferences about negligence that arise from it. In some cases, the existence of the injury is enough to give rise to the commonsense inference that something went wrong and a care provider is at fault. Several cases cited by Bardessono, supra, 3 Cal.3d 780 are of this variety, encompassing fact patterns where surgical implements were left inside patients or unconscious patients suffered injuries to parts of their bodies unrelated to their treatment. (See Leonard v. Watsonville Community Hospital (1956) 47 Cal.2d 509 [surgical clamp left in patient]; Ales v. Ryan (1936) 8 Cal.2d 82, 88, [sponge left after surgery caused fatal infection]; Timbrell v. Suburban Hospital, Inc. (1935) 4 Cal.2d 68, 71 [burn from hot water bottle]; Meyer v. McNutt Hospital (1916) 173 Cal. 156, 158 [same]; Ybarra, supra, at p. 491 [shoulder injury after appendectomy]; Guilliams v. Hollywood Hospital (1941) 18 Cal.2d 97 [rib broken after kidney surgery].)
Other cases cited by Bardessono required some expert opinion at the outset to explain the type of injury the plaintiff sustained and/or how the medical professional's actions might have caused it. Once this explanation was provided, common sense could then be applied to evaluate negligence. (See Davis v. Memorial Hospital (1962) 58 Cal.2d 815, 817 [expert testimony explained how an improperly administered enema could cause an abscess]; McBride v. Saylin (1936) 6 Cal.2d 134, 138 [expert explained that the eye injury presented would alert a doctor to check for a foreign body with an x-ray]; Barham v. Widing (1930) 210 Cal. 206, 216 [preliminary expert testimony established an infection started at an oral injection site, giving rise to a common sense inference that the dentist did not sterilize the needle]; Cho v. Kempler (1960) 177 Cal.App.2d 342, 350 [expert explained why the plaintiff's severed nerve could not be easily nicked by a conscientious doctor during the particular surgery]; Mayers v. Litow (1957) 154 Cal.App.2d 413, 420 [expert clarified that injury to a vocal cord nerve during thyroid surgery indicated negligence].)
Bardessono itself falls into this latter category, as some expert testimony from Dr. Burgess was necessary to explain that there is a nerve center under the shoulder, that the plaintiff suffered a trauma to that nerve, and that the injections were a possible cause. (Bardessono, supra, 3 Cal.3d at p. 787.) Although the plaintiff relied on res ipsa to demonstrate negligence, he did not rely on common knowledge as to the location of his nerves or the traumatic nature of the injury to them. A medical expert was required.
Bardessono's overview of what it deemed to be simple injection cases underscores this point; even in those, expert testimony was needed to understand the injury. In Bauer v. Otis (1955) 133 Cal.App.2d 439, the plaintiff suffered "wrist drop" after an injection, and a surgeon testified the plaintiff had a lesion on the relevant nerve—one that occurred at the time of the injection. From there, res ipsa could supply the inference of negligence, but the doctor's testimony was needed to understand that the nerve was injured in the first place. (Id. at p. 442.) Similarly, in Wolfsmith v. Marsh (1959) 51 Cal.2d 832, the plaintiff experienced significant pain after a leg injection, and a doctor who examined her afterward provided testimony that she had a scar, inflammation, and causalgia at the site of the injection. (Id. at p. 834.)
There is thus a category of medical cases where a res ipsa inference of negligence is built, in the first instance, on the foundation of an expert supplying critical information about the injury and the basic anatomy involved. This is usually necessary in cases where the harm is internal and not readily visible to an observer. As the Supreme Court observed in Cavero v. Franklin General Benevolent Soc. (1950) 36 Cal.2d 301 (Cavero), a case relied on by Bardessono, "Here what was done lies outside the realm of the layman's experience. Medical evidence is required to show not only what occurred but how and why it occurred." (Cavero, at p. 309; quoting Engelking v. Carlson (1939) 13 Cal.2d 216, 221.)
That expert testimony is sometimes needed to support an application of res ipsa corrects a central confusion in Gutierrez's position. She treats res ipsa loquitor as a substitute for an expert opinion, but they are not mutually exclusive options for a plaintiff's burden of proof. As demonstrated in the cases catalogued above, they regularly work in tandem. Indeed, in determining whether res ipsa applies to a case, courts routinely rely "both upon common knowledge and the testimony of expert witnesses." (Seneris v. Haas (1955) 45 Cal.2d 811, 824-825.)
In light of all this, we read Bardessono not as an abrogating the general principles of res ipsa for injection cases, but rather as providing further guidance for applying them. (Bardessono, supra, 3 Cal.3d 780.) Once fundamental questions about what likely happened have been addressed—either through a commonsense inference that arises from the injury itself or through foundational expert knowledge that illuminates hidden anatomy—then Bardessono's distinction between common and unusual injection procedures applies. Which category any case falls into necessarily "turn[s] upon a conglomerate of medical facts." (Bardessono, at p. 790.)
Under this rationale, plaintiffs who are likely injured from common injections may well be entitled to res ipsa jury instructions (Bardessono, supra, 3 Cal.3d at p. 790), but such instructions are proper without any expert testimony only " 'where a layman is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised.' " (Cavero, supra, 36 Cal.2d at p. 309.) A plaintiff cannot expect to rely on res ipsa as a panacea, riding it all the way through to a trial when the fact finder would necessarily need some expert assistance for even a cursory understanding of what probably happened, as well as how and why it occurred. To read Bardessono as doing away with this foundational need creates two problems: it subjects injection cases to a "rigid legal formula" that is inapposite to the res ipsa inquiry (Ybarra, supra, 25 Cal.2d 486 at p. 489), and promotes ill-informed assumptions that might be easily dispelled by a basic anatomy lesson. For all of these reasons, we decline to read Bardessono as Gutierrez urges, which would untether its analysis from the basic principles applicable to every other medical res ipsa case.
Returning to the particular facts at hand, the central problem posed by Gutierrez's naked reliance on res ipsa to overcome Gradney's summary judgment motion is that she furnished the trial court no evidence, apart from her own declaration, to show why her injury does not normally occur in the absence of negligence. To illustrate this point, we turn to Elcome, supra, 110 Cal.App.4th 310, which presents a similar scenario. In Elcome, the plaintiff had pelvic surgery and awoke with pain in her right arm. She alleged the surgical or support staff negligently damaged her thoracic nerve during the procedure and relied on res ipsa loquitor. (Id. at p. 313.) Among other parties, she sued Tenet (the hospital) and Dr. Chin (a surgeon). Tenet and Chin filed separate motions for summary judgment, both supported by expert declarations concluding they acted within the appropriate standard of care and did not cause any injuries to Elcome.
In response to Chin, Elcome submitted only on her own declaration in which she stated she had no arm pain before the surgery. (Elcome, supra, 110 Cal.App.4th at p. 313.) Her challenge to Tenet's motion was somewhat more robust; it included a declaration from Dr. Rosen, who would not opine as to Elcome's actual condition but generally explained pelvic surgery should not damage the thoracic nerve "unless there were some negligent conduct, substandard handling or treatment or some other intervening action or agent." (Id. at p. 315.) After losing on both motions, Elcome appealed, arguing her reliance on res ipsa should have prevented the defendants from prevailing at the summary judgment stage. (Ibid.)
In affirming the result, the appellate court explained that because Chin and Tenet demonstrated they did not breach the standard of care or cause the plaintiff's injuries, Elcome was then obligated to raise a triable issue of fact as to negligence and causation. She "could have met this burden either by (1) producing direct evidence of each defendant's negligence and causation, or (2) producing evidence of the three elements of res ipsa loquitur." (Elcome, supra, 110 Cal.App.4th at p. 318.) She failed to produce either. Critically, the Elcome court noted that her injury was not like a stray object left in a plaintiff's body after surgery, "for which there is no explanation other than that someone failed to exercise due care." (Ibid.) As to causation, she submitted no medical evidence that she actually sustained a nerve injury. As to negligence, Rosen opined that negligence could cause the type of nerve damage she alleged, but stopped short of suggesting negligence was the likely cause. As such, his statement did not aid the plaintiff in demonstrating the three elements of res ipsa. Her "lay declaration" was insufficient to fill that gap. (Ibid.)
The same can be said of Gutierrez, who supplied even less to the trial court than her counterpart in Elcome. (Elcome, supra, 110 Cal.App.4th at p. 318.) At the very least, after Gradney offered expert testimony that he was not negligent she was obligated to offer some responsive evidence that she could support that element of her claim through a res ipsa theory. To do this, she would have had to provide expert opinion testimony that the type of nerve injury she alleged would not likely occur from an oral anesthetic absent negligent conduct. She could not rely on her lay opinion alone for this. (See, e.g., Surabian v. Lorenz (1964) 229 Cal.App.2d 462, 466 [describing evidence that the "exact location of . . . the pattern of nerves and bloodvessels . . . may vary in perfectly normal mouths," which introduces "calculated risk" into dental injections].) That an injury occurs rarely, or is particularly severe, also provides no substitute for expert knowledge about negligence as a likely cause. (Id. at pp. 465-467.) Like many things in the medical realm, this is "a matter peculiarly within the knowledge of experts." (Flowers, supra, (1994) 8 Cal.4th at p. 1001.) Once Gradney provided experts who opined that the treatment he provided was reasonable and not negligent, Gutierrez was obligated to furnish the trial court with some competing expert evidence if she wished to proceed. Because she did not, we affirm the trial court's grant of summary judgment in favor of Gradney.
DISPOSITION
The judgment is affirmed. Gradney is entitled to costs on appeal.
DATO, J. WE CONCUR: McCONNELL, P. J. IRION, J.