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Recent decision on qualifications of expert witness in medical
malpractice actions
Avivi v. Centro Medico Urgente Medical Center (January 29, 2008) |
In Avivi v. Centro Medico Urgente Medical Center (Pub’d order filed
January 29, 2008) 08 C.D.O.S. 1358, Division Four of the Second
Appellate District held that a physician from Israel who had never
practiced medicine in the United States was qualified to render
testimony in opposition to a motion for summary judgment about the
standard of care in Los Angeles. In doing so, it reversed the trial
court’s order granting defendant’s motion for summary judgment on
the basis that plaintiff’s only expert declaration was by a
physician who was not familiar with the standard of care in Los
Angeles. The appellate court said that viewing the evidence most
favorably for appellant, the expert’s declaration showed he was
sufficiently qualified to create a triable issue on the standard of
care and to have the matter go to a jury. In so holding, the court
pointed out that evidence of familiarity with “similar
circumstances” rather than locality is essential to a determination
of whether an expert is qualified to render testimony on the
standard of care.
Plaintiff and appellant Nurit Avivi broke her arm while visiting the
United States from Israel. She sought treatment at defendant and
respondent’s medical center, where her broken arm was splinted by
physician’s assistants and she was given pain medication. She
returned to the medical center several more times over the course of
the following week due to pain and swelling, but was merely given
more pain medication by the PAs and told to keep wearing the splint.
When Avivi returned home to Israel, she was seen by an orthopedic
surgeon, Dr. Arieh, who “observed that the fingers on her right hand
were blue, cold and stiff.” He concluded the splint was too tight,
so he removed it and replaced it with a cast. Three months later Dr.
Arieh diagnosed the patient has having sustained a number of
permanent injuries from the splinting of her arm.
Avivi sued the medical center for malpractice and the center moved
for summary judgment. In support of its motion, the center offered
the declaration of a surgeon who had practiced and taught hand
surgery in the LA area for several years. According to defendant’s
expert, the care rendered to Avivi was appropriate and within the
standard of care of the community.
In opposition, Avivi offered the declaration of Dr. Arieh. Though
Dr. Arieh did not explicitly say he was familiar with the standard
of care in the LA area, he stated he had treated thousands of
fractures in his career, and had spoken with American physicians and
reviewed American literature on the treatment of fractures and the
standard of care in this country.
The medical center objected to Dr. Arieh’s declaration on two
grounds: First, it argued that he was not qualified to render expert
testimony because he was not familiar with the standard of care in
Southern California. Second, the center claimed Dr. Arieh’s
declaration was inadmissible because “it did not provide a clear,
express opinion that respondents’ treatment caused appellant’s
injuries.” The trial court was persuaded by both of the center’s
contentions and granted summary judgment. Avivi timely appealed.
After a good and detailed discussion of the evolution of the methods
courts have used to determine whether familiarity with local
standards of care should be required of experts, the appellate court
reversed. It pointed out that on review it was incumbent on the
court to view the evidence most favorably for appellant. In doing
so, it found Dr. Arieh was qualified to render standard of care
testimony, at least for the purposes of creating a triable issue and
getting the matter to a jury. It also held that while Dr. Arieh used
the term “belief” when talking about his opinions regarding the
treatment rendered to Avivi and the cause of her injuries rather
than some other term, the declaration did not suggest that Dr. Arieh
was uncertain or engaging in speculation.
The trial court excluded Dr. Arieh’s declaration “because he did not
demonstrate familiarity with the standard of care in Southern
California.” The appellate court explained, “In order to testify as
an expert in a medical malpractice case, a person must have enough
knowledge, learning and skill with the relevant subject to speak
with authority, and he or she must be familiar with the standard of
care to which the defendant was held. (Evid. Code, section 720, subd.
(a)).” The relevance of geographic location to the qualifications of
a physician to be an expert is no longer that important. The Supreme
Court in Sinz v. Owens held the “’essential factor’ in determining
the qualification of an expert witness in medical malpractice cases
‘is knowledge of similarity of conditions; geographical proximity is
only one factor to be considered.’” Since the Sinz decision, the
Supreme Court has “formulated the standard of care as that of
physicians in similar circumstances rather than in similar
locations.” (Emphasis in original). While “locality” may still be a
factor depending on the circumstances, the court cited a recent JAMA
article that actually calls for a “national standard of acre in
which location may be considered, but only with respect to what
facilities, resources or subspecialist physicians are available.”
(citing Lewis, et al., The Locality Rule and the Physician’s Dilemma
(June 20, 2007) 297 JAMA 2633, 2634)
Here, the question was the care of a broken arm, which the court
felt was a very common injury familiar to physician across the
country and throughout history—apparently Hippocrates wrote a
treatise on the treatment of fractures in the fourth century B.C! In
a bit of a swipe at respondent, the court said “appellant’s injury
appears to be so common and simple that respondent medical center
permitted nonphysicians to treat it. Respondent did not present any
evidence tending to show that the standard of treatment for such a
fracture in Southern California differed from standard practice
anywhere else in the United States.” Because Dr. Arieh stated in his
declaration that he was familiar with the SOC in the U.S., and
because “neither the Evidence Code nor Supreme Court precedent
requires an expert witness to have practiced in a particular
locality before he or she can render an opinion in an ordinary
medical malpractice case,” Dr. Arieh’s declaration should have been
admitted. By finding him unqualified and excluding the declaration,
the trial court abused its discretion.
This case is interesting and may be a harbinger of an era where
declarations from non-U.S. physicians in opposition to MSJs become
more common. With the availability of digital technology to review
x-rays, CTs and other diagnostic tests remotely and from outside the
country, we can expect to see expert declarations from physicians
who have never practiced in California in opposition to dispositive
motions, and perhaps generally in support of plaintiff’s actions.
From the looks of this decision, all an expert needs to say (in
addition to medical qualifications and familiarity with the case at
issue) is that he or she is familiar with the SOC in the U.S.
Availability for deposition is obviously an issue in the event a
plaintiff wants to use an out-of-country expert to testify at trial,
but there is no such requirement if one simply needs a declaration
to defeat a MSJ (or make one, I suppose). This is not to say that
the expert’s qualifications should not be challenged if he or she is
from outside the U.S. and declares familiarity with the U.S. SOC,
but that one should not expect to get rid of an expert or win a MSJ
simply by claiming the expert is not qualified by virtue of having
never practiced in the U.S. or any particular community.
[The court did note that, while not relevant to this case, evidence
of familiarity with care in a particular geographic area is required
of ER experts under Health & Safety Code section 1799.110. In ER
malpractice cases “the standard of care includes a ‘same or similar
locality’ requirement. (Cite omitted) In such cases, only physicians
who have had ‘substantial professional experience’ in general acute
care hospital emergency departments in the same or similar locality
in the five years before the alleged malpractice occurred may
testify as an expert witness.”] |
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