Alvarado v. Wilson CA2/5 ( 2022 )

Filed 2/17/22 Alvarado v. Wilson CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
ERNESTO P. ALVARADO, B303361
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. BC663434)
DEAN WILSON,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Lia R. Martin, Judge. Affirmed in part, reversed
in part, and remanded.
James S. Link; Peter K. Levine; Eugene D. Locken for
Plaintiff and Appellant.
Horvitz & Levy, H. Thomas Watson and Mark A. Kressel;
Dummit Buchholz & Trapp, Harmon B. Levine and Craig S.
Dummit, for Defendant and Respondent.
Plaintiff and appellant Ernesto Alvarado (Alvarado)
appeals from a summary judgment granted in favor of defendant
and respondent Dean Wilson (Wilson), a physician assistant who
treated Alvarado while hospitalized. The key issue we are asked
to decide is whether the trial court erred in sustaining an
objection to a portion of an expert declaration opining that the
malpractice of various personnel who treated Alvarado while in
the hospital caused his vision loss. We also consider whether
there is a dispute of material fact requiring trial on Alvarado’s
separate claim for medical battery.
I. BACKGROUND
A. Undisputed Facts1
In late February 2016, Alvarado twice went to a hospital
emergency room complaining of a headache, stiff neck, and
hearing loss related to a shunt catheter and shunt tube that had
been placed in his head more than ten years before.2 Alvarado
improved and was discharged both times. Just a couple days
later, however, Alvarado again sought emergency care for similar
symptoms—this time at West Hills Hospital—and doctors
admitted him for further treatment.
On March 1, 2016, while still hospitalized, Alvarado was
seen by Dr. Leon Barkodar, a neurologist. He recommended
neurosurgery personnel check Alvarado’s cerebrospinal fluid at
1
Consistent with governing law, our summary of the facts is
stated in the light most favorable to Alvarado. (Hughes v. Pair
(2009) 46 Cal.4th 1035, 1039.)
2
Years earlier, Alvarado was diagnosed with pseudotumor
cerebri, a condition that causes increased pressure inside the
head—pressure that, if untreated, can cause vision loss.
2
the shunt and undertake a lumbar puncture to evaluate Alvarado
for possible viral meningitis. Alvarado was then seen by Wilson,
who asked Alvarado’s mother to bring him old imaging and chart
notes so he could review them. After obtaining Alvarado’s
written consent, Wilson attempted a procedure that would “tap”
one of Alvarado’s shunts, but he was unable to extract
cerebrospinal fluid. As a result, he recommended a lumbar
puncture be performed. The lumbar puncture was performed
later that day by Dr. Bruce Shragg, an interventional radiologist.
Alvarado remained in the hospital for a few days. Dr.
Barkodar eventually determined Alvarado was ready for
discharge from a neurological standpoint. The next day,
Alvarado was seen by another doctor who noted Alvarado was
feeling better and his neck was at full range of motion and not
tender. Alvarado was ultimately discharged from the hospital on
March 7, 2016.
After another emergency room visit and a doctor’s visit,
Alvarado went to the emergency room at Kaiser Woodland Hills
in mid-March 2016. A CT scan was taken with no acute findings,
and Alvarado was discharged. He returned to the emergency
room at West Hills Hospital two days later, due in part to a
possible seizure he suffered the day before. He was discharged
that afternoon. He returned to the same emergency room just
under a week later, and he was counseled on lifestyle changes
and again discharged.
Alvarado thereafter attended appointments with Dr.
Barkodar in April and May. During the April appointment,
Alvarado’s lumbar puncture pressure was reported to be
low/normal. During the latter appointment, Dr. Barkodar
recommended an ophthalmology referral for blurry vision.
3
Alvarado saw ophthalmologist Dr. Andrew Chang on June
1, 2016, complaining of blurred vision and double vision. Dr.
Chang’s assessment included optic neuropathy and papilledema
secondary to meningitis. Alvarado was instructed to follow-up in
three weeks.
Two days later, Alvarado went to the UCLA Medical Center
emergency room complaining of headache and malaise. Testing
showed Alvarado had high cerebrospinal fluid pressure and
diminished vision. CT scans taken that day and the following
day appeared to show a broken cranial shunt. Alvarado then
underwent a procedure in which a new ventriculoperitoneal
shunt was placed on the left side of his skull to decompress the
ventricles. The following day, Alvarado was diagnosed with a
massive papilledema in both eyes (papilledema is increased
pressure in or around the brain which causes the part of the optic
nerve inside the eye to swell). Alvarado now asserts he is
permanently blind as a result of the ongoing effects of elevated
cerebrospinal fluid pressure on his optic nerves.
B. Alvarado’s Lawsuit
After losing his vision, Alvarado sued various medical
providers that were involved in his care: Wilson, Dr. Barkodar,
Dr. Veena Sengupta, Dr. Shragg, West Hills Hospital, West Hills
Hospital and Medical Center, and Dr. Chang.
The operative first amended complaint, filed in October
2017, alleges: a first cause of action for medical malpractice
against both hospital defendants, Wilson, and Drs. Barkodar,
Sengupta, and Shragg;3 a second cause of action for lack of
3
A separate cause of action for medical malpractice was
also alleged against Dr. Chang.
4
informed consent against Wilson and the two West Hills entities;
a third cause of action for medical battery against Wilson, Dr.
Barkodar, and the hospital defendants; and a fourth cause of
action for corporate negligence against the West Hills entities
only.4
C. Wilson’s Motion for Summary Judgment or Summary
Adjudication in the Alternative
Wilson moved for summary judgment, or in the alternative,
summary adjudication (for simplicity, the “summary judgment
motion”). As relevant here, Wilson contended the cause of action
for medical negligence failed to raise triable issues of material
fact both because Wilson complied with the applicable standard
of care and because none of his actions caused or contributed to
Alvarado’s injury. He also argued the causes of action for
medical battery and lack of informed consent failed to raise
triable issues of material fact because no acts or omissions caused
Alvarado’s injury. In support of these arguments, Wilson
submitted the expert declaration of Dr. John Frazee, a
neurosurgeon.
In his declaration, Dr. Frazee explained his understanding
of the relevant facts, including Alvarado’s interactions with
Wilson. Dr. Frazee noted Wilson examined Alvarado, attempted
to tap Alvarado’s shunt, and, after three unsuccessful attempts to
extract fluid, recommended a lumbar puncture. Wilson also
noted his impression that Alvarado was clinically stable of viral
4
The record also reflects Alvarado filed a separate case
against Wilson alleging fraud. That case is unimportant for our
purposes.
5
meningitis, and that his fluid pressure was low/within normal
limits.
Dr. Frazee opined, “to a reasonable degree of medical
probability, no acts or omissions to act by [Wilson] or any of the
physicians and non-physician personnel who cared for [Alvarado]
during the February-March 2016 admissions caused or
contributed in any way to [Alvarado’s alleged injuries].” More
specifically, Dr. Frazee noted there was no evidence of
papilledema during Alvarado’s West Hills admission. Regarding
Alvarado’s shunt, Dr. Frazee opined Wilson’s attempt to tap the
cranial shunt and any damage possibly caused by that attempt
had no relationship to Alvarado’s ultimate diagnosis and “could
not have caused or contributed in any way to [Alvarado’s] alleged
injuries.” He also noted CT scans taken before and after Wilson
treated Alvarado did not show any change to the shunt.
Alvarado opposed the motion for summary judgment and
argued Wilson did not comply with the standard of care in
attempting to tap Alvarado’s shunt—by failing to first review
Alvarado’s prior medical records, by not requesting his
supervising physician to assess the shunt, and most importantly
for our purposes, by not examining Alvarado’s eyes for
papilledema. He argued these failures were a substantial factor
in causing the harm he suffered.
Among the evidence Alvarado submitted in opposition were
excerpts from his deposition and his own declaration. Alvarado
testified at deposition that he began noticing blurry vision while
at West Hills Hospital in March 2016 and he was suffering from
headaches, blurred vision, and whooshing sounds in his ears at
the end of March 2016. In his declaration, Alvarado asserted
that when Wilson “performed the 4-5 attempts to tap my head
6
shunt without my consent, it caused severe physical pain, severe
mental suffering, emotional distress, feelings of humiliation and
anxiety.” He further stated, “The physical pain resolved within
several weeks, however, I continue to have severe mental
suffering, emotional distress, and feeling of humiliation and
anxiety to this day.”
Alvarado also submitted two expert declarations with his
opposition. The most important of these for this appeal is the
declaration of Dr. Benjamin Frishberg, a neuro-ophthalmologist
who declared he was familiar with the standard of care in the
medical profession for physicians who care for patients with
neuro-ophthalmologic problems. Dr. Frishberg summarized the
facts he gleaned from his review of records, including various
aspects of Alvarado’s hospital stay.
Based on the symptoms Alvarado described during his
deposition (namely, severe headaches worsening when lying on
his back, blurred vision, double vision, and “whooshing sounds in
his head”), Dr. Frishberg opined to a reasonable degree of medical
probability that Alvarado suffered from increased intracranial
pressure and papilledema from March 1, 2016, up to and after
June 1, 2016. (He specifically noted Dr. Shragg did not use a
manometer to measure Alvarado’s intracranial pressure on
March 1, 2016, and that without such use Dr. Shragg “simply
guessed that the pressure was low and not elevated.”) Dr.
Frishberg additionally emphasized that during Alvarado’s stay at
West Hills Hospital, “no healthcare provider specifically
documented the condition of [his] optic nerves.”
Dr. Frishberg declared that based on his background,
training, and experience, he was “qualified to render expert
opinions regarding any violations of the standard of care by any
7
of the healthcare providers who care for patients with neuro-
ophthalmologic problems practicing[ ] in this matter and what
harm, if any, the violations of the standard of care caused to
[Alvarado].” We shall quote in full Dr. Frishberg’s elaboration of
his causation opinion: “To a reasonable degree of medical
probability the acts or omissions to act by the physicians and
non-physician personnel who cared for [Alvarado] during the
February-March 2016 admissions caused or contributed to
[Alvarado’s] alleged injuries in the following ways:[5] [¶] a. The
opening pressures reported on March 2, 2016, in Dr. Barkodar’s
and Dean Wilson’s progress notes, as low or low/normal opening
pressure are meaningless because Dr. Shragg admitted in his
deposition he chose not to use a manometer to measure the
opening pressure, but he simply guessed that the opening
pressure was not high but low or low/normal. To a reasonable
degree of medical probability, [Alvarado] had increased [intra-
cranial pressure] and papilledema beginning on February 28,
2016, that continued, and progressively[ ] worsened[,] until June
1, 2016. [¶] b. A proper ophthalmologic eye exam to detect the
papilledema was never performed on [Alvarado] by any
healthcare provider during the hospitalization. [Sic] Thereby
failing to detect the papilledema that in all medical probability
5
The trial court would later sustain an “overbroad” objection
made by Wilson to this preface (i.e., the portion that states the
acts and omissions of “physicians and non-physician personnel
who cared for [Alvarado] during the February-March 2016
admissions caused or contributed to [Alvarado’s] alleged injuries
in the following ways”). As we later explain, that was error and
we shall consider the preface in our analysis—even though it is
not necessary to the conclusion we reach.
8
was present. [¶] c. A proper opening pressure was never
performed and recorded on [Alvarado] by Dr. Shragg, thereby
failing to detect the increased intra-cranial pressure that in all
medical probability was present. [¶] d. The failure to detect the
papilledema and increased intra-cranial pressure that was in all
medical probability present during the February-March 2016
hospitalization allowed the increased intra-cranial pressure and
papilledema to continue to progressively worsen and was in all
medical probability a substantial factor in causing [Alvarado’s]
loss of vision.”6
Along with Dr. Frishberg’s declaration, Alvarado submitted
a declaration from Joseph Hlavin (Hlavin), a physician assistant.
Hlavin recited various facts gleaned from the record and then
opined, in pertinent part, that Wilson violated the standard of
care of a reasonably careful physician assistant by not examining
Alvarado’s eyes for papilledema and by not requesting his
supervising physician to come to the hospital to assess the shunt.
In reply, Wilson objected to numerous statements made in
the declarations of Dr. Frishberg and Hlavin. Among those was
this statement in Dr. Frishberg’s declaration concerning
causation: “The failure to detect the papilledema and increased
intra-cranial pressure that was in all medical probability present
during the February-March 2016 hospitalization allowed the
increased intra-cranial pressure and papilledema to continue to
6
Dr. Frishberg’s declaration does not make specific
reference to Wilson by name other than as quoted in this excerpt.
The declaration does refer to “non-physician personnel” and
“healthcare provider[s]” who cared for Alvarado, however, and
Wilson is the only named defendant who is not a physician (or an
entity).
9
progressively worsen and was in all medical probability a
substantial factor in causing Ernesto Alvarado’s loss of vision.”
Wilson’s objection to this statement, designated as objection
number 11, was phrased: “Vague and ambiguous as to whether
this opinion is meant to apply to Defendant, [Wilson]; also a
conclusion. If it is directed to [Wilson], there is a lack of
foundation that this witness has the background, training and
experience to give an opinion as to the standard of care by a
physician assistant.”7
D. The Trial Court’s Summary Judgment Ruling
The trial court held a hearing on Wilson’s motion for
summary judgment (and other matters pertaining to the other
defendants). The transcript of the hearing indicates the court’s
tentative ruling was to grant summary adjudication as to the
lawsuit’s causes of action for lack of informed consent and fraud
while denying summary adjudication as to the causes of action
7
Wilson also objected to both of Dr. Frishberg’s statements
regarding his familiarity with the applicable standards of care.
First, he objected to Dr. Frishberg’s assertion that he was
“readily familiar with the standard of care applicable to the
treating physicians, physicians assistants[,] hospital staff and
other medicine practitioners involved in” Alvarado’s treatment.
Second, he objected to Dr. Frishberg’s assertion that he was
“qualified to render opinions regarding any violations of the
standard of care by any of the healthcare providers who care for
patients with neuro-ophthalmologic problems practicing, in this
matter and what harm, if any, the violations of the standard of
care caused to [Alvarado].” Wilson’s objections to both
statements were made on the grounds that the statements were
conclusory and that Dr. Frishberg lacked foundation regarding
the standard of care for a physician’s assistant.
10
for medical malpractice and medical battery. Counsel argued
only about the claims for which the tentative indicated summary
adjudication would be granted (i.e., not the medical malpractice
and medical battery claims). The court took the matter under
submission.
In contrast to its tentative ruling, the trial court’s final
order granted Wilson’s motion for summary judgment in full (i.e.,
resolving the medical malpractice and medical battery claims in
Wilson’s favor as well). Turning first to the parties’ evidentiary
objections, it sustained several of Wilson’s objections (while
overruling all of Alvarado’s). The one that matters for our
purposes is the ruling on objection number 11 to the causation
opinion expressed by Dr. Frishberg. On that objection, the court’s
ruling states, “sustained as to defendant Wilson only.”
Proceeding to the merits of the motion, the trial court
concluded Alvarado had not raised a triable issue of material fact
on any of his causes of action. As to Alvarado’s medical
negligence and medical battery causes of action against Wilson,
the court found there was “no triable issue of material fact with
respect to whether any act or omission by defendant [Wilson]
contributed to [Alvarado’s] injuries.”
Alvarado subsequently filed a motion for new trial arguing
the trial court erred in sustaining Wilson’s objections to Dr.
Frishberg’s declaration, and further contending that, had the
statements not been stricken, he would have raised a triable
issue of material fact as to all four of his causes of action. The
trial court denied the motion and entered judgment for Wilson.
11
II. DISCUSSION
The trial court did not err in finding there were no triable
issues of material fact as to Alvarado’s claim for medical battery.
Wilson’s expert opined the alleged battery (the repeated,
unsuccessful attempts by Wilson to tap Alvarado’s shunt) did not
cause Alvarado’s vision loss (or any other injury) and Alvarado
presented no expert testimony to the contrary.
The same cannot be said, however, for the trial court’s
disposition of the medical malpractice cause of action asserted
against Wilson. The trial court abused its discretion by
sustaining objection 11 to Dr. Frishberg’s declaration. Though
Dr. Frishberg’s declaration is not a paragon of specificity, it is
adequate to establish a dispute of fact on the issue of causation: it
establishes Dr. Frishberg reviewed the relevant evidence, was
familiar with Wilson’s treatment of Alvarado, and expressed a
causation opinion encompassing Wilson’s asserted violation of the
standard of care. Because Wilson concedes Alvarado did raise a
triable issue of fact as to whether there was a violation of the
standard of care, trial is required to resolve Alvarado’s claim for
medical malpractice.
A. Background Law
Summary judgment is appropriate “if all the papers
submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.” (Code Civ. Proc., § 437c, subd. (c).) The
defendant bears the initial burden of showing that the plaintiff
cannot establish one or more elements of each cause of action, or
that there is an affirmative defense to it. (Code Civ. Proc. § 437c,
subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
12826, 850 (Aguilar).) If the defendant makes one of the required
showings, the burden shifts to the plaintiff to establish a triable
issue of material fact. (Code Civ. Proc. § 437c, subd. (p)(2);
Aguilar, supra, at 850.) To defeat summary judgment, the
plaintiff must “‘set forth the specific facts showing that a triable
issue of material fact exists as to that cause of action . . . .’
[Citations.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477.)
“When the moving party produces a competent expert
declaration showing there is no triable issue of fact on an
essential element of the opposing party’s claims, the opposing
party’s burden is to produce a competent expert declaration to the
contrary.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755,
761-762.) “The same rules of evidence that apply at trial also
apply to the declarations submitted in support of and in
opposition to motions for summary judgment. Declarations must
show the declarant’s personal knowledge and competency to
testify, state facts and not just conclusions, and not include
inadmissible hearsay or opinion.” (Id. at 761.) “The declarations
in support of a motion for summary judgment should be strictly
construed, while the opposing declarations should be liberally
construed. [Citation.] This does not mean that courts may relax
the rules of evidence in determining the admissibility of an
opposing declaration. Only admissible evidence is liberally
construed in deciding whether there is a triable issue.” (Ibid.)
“We review [a] trial court’s ruling on the admissibility of
expert testimony for abuse of discretion.” (Sanchez v. Kern
Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th
146, 154.)
13
B. The Medical Battery Cause of Action
To state a cause of action for medical battery, a plaintiff
must allege: (1) a defendant performed a medical procedure
without the plaintiff’s consent, or the plaintiff consented to one
medical procedure but the defendant performed a substantially
different medical procedure; (2) the plaintiff was harmed; and (3)
the defendant’s conduct was a substantial factor in causing the
plaintiff’s harm. (CACI No. 530A.)
Wilson’s motion argued his actions had not caused or
contributed to the alleged harm to Alvarado and relied on Dr.
Frazee’s declaration. Dr. Frazee opined that “to a reasonable
degree of medical probability, no acts or omissions to act by
[Wilson] or any of the physicians and non-physician personnel
who care[d] for [Alvarado] during the February-March 2016
admissions caused or contributed in any way to [Alvarado’s
alleged injuries].” Dr. Frazee further opined that any possible
damage to the cranial shunt during Wilson’s attempts to tap it
had no relationship to Alvarado’s ultimate diagnosis and “could
not have caused or contributed in any way to [Alvarado’s] alleged
injuries.”
Alvarado now argues his own declaration suffices to
establish a factual dispute requiring trial on this point. It states
in pertinent part that “[w]hen [Wilson] performed the 4-5
attempts to tap my head shunt without my consent it caused
severe physical pain, severe mental suffering, emotional distress,
feeling of humiliation and anxiety.” While this constitutes
evidence of harm, it is not competent evidence of causation. To
properly rebut Wilson’s proffered expert testimony opining
Alvarado’s injuries were not caused by his attempt to tap the
shunt, Alvarado was required to provide expert testimony of his
14
own establishing the attempt to tap the shunt was causally
related to harm he suffered. (See Jones v. Ortho Pharmaceutical
Corp. (1985) 163 Cal.App.3d 396, 402 [causation in personal
injury action must be proven “within a reasonable medical
probability based upon competent expert testimony”].) He did
not do so. Dr. Frishberg’s declaration, the only expert testimony
submitted by Alvarado that addressed causation, did not
specifically address the attempt to tap the shunt or link it to any
injury Alvarado suffered. As a result, the trial court correctly
concluded Alvarado had not raised a triable issue of material fact
as to causation on his medical battery claim.
C. The Medical Malpractice Cause of Action
1. Elements of the claim
“‘[I]n 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.]” (Hanson
v. Grode (1999) 76 Cal.App.4th 601, 606 (Hanson).) A medical
malpractice plaintiff “must show that defendants’ breach of the
standard of care was the cause, within a reasonable medical
probability, of his injury.” (Bushling v. Fremont Medical Center
(2004) 117 Cal.App.4th 493, 509; see also Garbell v. Conejo
Hardwoods, Inc. (2011) 193 Cal.App.4th 1563, 1569 [“Where the
complexity of the causation issue is beyond common experience,
expert testimony is required to establish causation”].)
15
2. The trial court erred by sustaining objection 11
to Dr. Frishberg’s declaration
Alvarado challenges the trial court’s ruling sustaining
objection 11 to Dr. Frishberg’s declaration. To reiterate, objection
11 was aimed at Dr. Frishberg’s statement that “[t]he failure to
detect the papilledema and increased intra-cranial pressure that
was in all medical probability present during the February-
March 2016 hospitalization allowed the increased intra-cranial
pressure and papilledema to continue to progressively worsen
and was in all medical probability a substantial factor in causing
[Alvarado’s] loss of vision.” Wilson objected this statement was
“[v]ague and ambiguous as to whether this opinion is meant to
apply to Defendant, [Wilson]; also a conclusion.”8
Neither Wilson nor the trial court disputes Dr. Frishberg
was qualified to opine regarding the standard of care for
providers who care for patients with neuro-ophthalmologic
problems and the harm, if any, the violations of the standard of
care caused to Alvarado. Dr. Frishberg’s declaration also averred
he was familiar with the pertinent medical records and
testimony, which were submitted with Alvarado’s opposition to
Wilson’s motion.
This review of records and the terms of Dr. Frishberg’s
declaration itself establish Wilson’s actions—or, more precisely,
his omissions—are encompassed by Dr. Frishberg’s causation
opinion. The records detail what Wilson did and did not do, and
Dr. Frishberg’s declaration makes specific reference to one of
8
There was more to the objection, as quoted earlier, but
Wilson relies only on this portion of the objection to avoid
reversal on appeal.
16
Wilson’s progress notes. Dr. Frishberg’s causation opinion is also
expressly rendered in terms that apply to all the “physicians and
non-physician personnel who cared for [Alvarado]”, and the
reference to “non-physician personnel” includes Wilson, the only
named defendant who is not a doctor (or an entity).9 Dr.
Frishberg also reemphasizes the intended scope of his opinions
when he states (without objection) that a proper ophthalmologic
eye exam to detect papilledema was never performed “by any
healthcare provider” during Alvarado’s hospitalization; the use of
the “healthcare provider” shorthand rather than the more limited
terms “doctor” or “physician” plainly encompasses Wilson.
The declaration’s explanation of the reasons for the
causation opinion expressed is also adequate, particularly in light
of the summary of records reviewed that precedes it. Dr.
Frishberg explains it is his view, to a reasonable degree of
medical certainty, that Alvarado was experiencing increased
intracranial pressure on March 1, 2016, (the day he was treated
by Wilson), increased intracranial pressure causes papilledema,
9
As discussed earlier, the trial court sustained an objection
to this statement in the declaration as “overbroad.” We are
flummoxed by the ruling. There is no recognized evidentiary
ground to disregard opinion testimony (as distinguished, say,
from discovery document requests) as overbroad. The use of
“physician and non-physician personnel” in the preface to Dr.
Frishberg’s expression of his opinion on causation is rather
obvious shorthand meant to include all of the defendants, and
nothing prohibits an expression of an opinion in these economical
terms. Insofar as the trial court used “overbroad” to mean
lacking foundation as to Wilson, that too would be incorrect in
light of Dr. Frishberg’s expertise and his review of records. We
accordingly consider the statement in our analysis, even though
it is not essential to it.
17
no “healthcare provider” (read: Wilson or any of the other
defendants) performed a proper ophthalmologic eye exam to
detect papilledema during Alvarado’s hospitalization, and the
“failure to detect the papilledema and increased intra-cranial
pressure that was in all medical probability present during the
February-March 2016 hospitalization allowed the increased
intra-cranial pressure and papilledema to continue to
progressively worsen and was in all medical probability a
substantial factor in causing [Alvarado’s] loss of vision.”
Particularly when viewed in light of settled law that Alvarado is
“entitled to all favorable inferences that may reasonably be
derived from [his expert’s] declaration” (Hanson, supra, 76
Cal.App.4th at 607), that is an adequate, non-conclusory
causation opinion as to Wilson.
Wilson cites Alexander v. Scripps Memorial Hospital La
Jolla (2018) 23 Cal.App.5th 206 (Alexander) to resist this
conclusion. In Alexander, the appellate court found an expert’s
opinions about the standard of care were deficient because they
lumped the defendants together without indicating how each
defendant’s acts constituted a violation. Alexander is inapposite
for two reasons. First, the excluded opinion in Alexander
concerned the standard of care, an issue that often requires more
individualized discussion, not causation. (Id. at 232.) Second,
the situational differences between the named defendants in that
case were extreme. For example, some of the physician
defendants included in the causation opinion had not even
treated the patient on the relevant date. (Id. at 231.) Here, in
contrast, it is undisputed that Wilson treated Alvarado during
the relevant time period.
18
Wilson also contends Dr. Frishberg’s declaration is
conclusory and thus inadmissible because it does not address
opinions stated by Wilson’s own expert, Dr. Frazee. More
specifically, Wilson contends Dr. Frishberg’s opinion is
inadmissible because it does not address Dr. Frazee’s opinion
that Wilson properly recommended a doctor perform a lumbar
shunt tap on Alvarado, Dr. Shragg performed the procedure, and
once Wilson noted Dr. Shragg’s finding that Alvarado’s fluid
pressure was low/within normal limits, the standard of care did
not require Wilson to further treat Alvarado. That Dr. Frishberg
did not expressly address Dr. Frazee’s opinion does not render his
declaration inadmissible and summary judgment therefore
proper; at most, it would be a question of the weight to be given
his opinion.10
Because we conclude the trial court erred in sustaining the
objection to the causation paragraph in Dr. Frishberg’s
declaration, we also conclude the trial court erred in granting
summary judgment. Dr. Frishberg’s causation opinion, which
contrasts with Dr. Frazee’s opinion, creates a triable issue of
material fact. Accordingly, the trial court erred in granting
summary judgment, and summary adjudication of the medical
malpractice cause of action was not warranted.
In the circumstance we now have, where “an appellate
court reverses summary judgment on grounds affecting fewer
10
Even if it were a question of admissibility, Dr. Frishberg’s
declaration does address the lumbar shunt tap by noting Dr.
Shragg’s deposition testimony indicated he had not used the
proper tool to measure Alvarado’s opening pressure and had
instead “guessed” the pressure was low. Wilson also concedes
that Hlavin’s declaration raises a triable issue of material fact as
to whether the standard of care was followed.
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than all causes of action, the appellate court may direct the trial
court to enter an order granting summary adjudication of the
unaffected causes of action so long as the moving party
alternatively moved for summary adjudication of them.
[Citations.]” (Severin Mobile Towing, Inc. v. JPMorgan Chase
Bank, N.A. (2021) 65 Cal.App.5th 292, 302-303.) Because Wilson
did move for summary adjudication in the alternative, that will
be our disposition.
DISPOSITION
The judgment is reversed. The cause is remanded with
directions to vacate the order granting summary judgment and
enter a new order summarily adjudicating the medical battery,
informed consent, and fraud causes of action in Wilson’s favor
while denying summary adjudication of the medical malpractice
cause of action as alleged against Wilson. Alvarado shall recover
his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J. MOOR, J.
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