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Eric Cox v. Peter B. Slabaugh et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO


December 13, 2010

ERIC COX, PLAINTIFF AND APPELLANT,
v.
PETER B. SLABAUGH ET AL., DEFENDANTS AND RESPONDENTS.

Plaintiff Eric Cox appeals from a judgment of the Alameda County Superior Court,(Alameda County Super. Ct. No. RG07330099) following the court's grant of summary judgment in favor of defendants Peter B. Slabaugh, M.D., and Alameda County Medical Center (ACMC) on Cox's medical malpractice claim against defendants.

The opinion of the court was delivered by: Kline, P.J.

Cox v. Slabaugh

CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

INTRODUCTION

Cox contends that the court erred in granting summary judgment for defendants, due to Cox's failure to produce expert testimony regarding the standard of care and causation in opposition to the motion. He argues that triable issues of material fact exist as to whether defendants' negligence allowed his knee to become infected. Specifically, Cox argues (1) defendants' evidence did not negate his theory of liability; (2) the court erred in finding as an undisputed material fact that defendants met the standard of care; and (3) the court erred in refusing to allow Cox to rely on the doctrine of res ipsa loquitur to establish liability and causation. (4) Cox also contends that the court erroneously sustained defendants' objections to his documentary evidence. We shall affirm the judgment.*fn1

FACTUAL AND PROCEDURAL HISTORY*fn2

The following facts are undisputed. On May 22, 2006, Cox was injured in a motor vehicle accident at work, suffering a fracture of his right leg. He was taken to the emergency department at Highland General Hospital (Highland). Highland is one of the hospital campuses that is part of respondent ACMC.*fn3 X-rays showed a fracture of the top of Cox's right tibia at the knee joint. The fracture was very serious and surgery was needed to repair the knee. The surgery involved putting metal plates and screws into Cox's leg to repair the knee. Cox consented to the surgery.

Surgery was performed on May 24, 2006. Cox was discharged from Highland on May 30, and given a follow-up appointment for June 6, 2006. He was seen at the outpatient orthopedic clinic on June 6 by Dr. Justice, one of the orthopedists involved in his care while he was hospitalized at Highland. At the follow-up visit, Cox reported that he was not having any pain, his cast was removed and his incision was found to be clean, dry and intact. A new cast was put on his leg. On June 15, Cox was seen at Kaiser in Oakland for complaints of constipation, nausea and loss of appetite. He was not having any problems with his leg at that time. On June 22, 2006, Cox went to the emergency department of Kaiser after noticing that day that a brownish fluid was leaking through his cast at the area of his knee. Four days earlier, Cox had noticed an odor emanating from the cast. At the time he noticed the odor and fluid, he did not notice any increase in his pain. At Kaiser, doctors diagnosed an infection in Cox's knee. He was admitted to the hospital, given antibiotics, and several surgeries were performed to remove infected tissue. Cox was discharged from Kaiser on July 18, 2006, and he continued to receive antibiotics for a period of time after discharge.

Defendants stated as an undisputed material fact that the surgery was performed by Slabaugh, and by orthopedic residents Jun Yang, M.D. and Jennifer Peter, M.D.*fn4 Cox disputes that Slabaugh actually performed the surgery. However, he cites only to a part of Slabaugh's deposition testimony that is consistent with Slabaugh's having performed the surgery. At his deposition, Slabaugh acknowledged that he "[did not] have an independent recollection of the surgery itself"; however, as he "was the attending surgeon, and . . . based on the injury that occurred and the surgery that was done, I was most probably surgically scrubbed on the case and involved in it, along with the resident surgeons."

Defendants asserted that the "surgery was performed in an appropriate manner consistent with the standard of care," referring to Slabaugh's declaration and Cox's deposition testimony that the doctors told him the day after surgery that it had gone well.*fn5 Defendants also maintained that "[d]uring and after his surgery, [Cox] was given Ancef, an antibiotic, to reduce the risk of post-operative infection." Defendants relied upon the anesthesia record, the physician's orders, and Slabaugh's declaration that "the Highland records clearly show that the patient was given an antibiotic called Ancef during and after his surgery, which is the standard protocol for prophylactic antibiotic treatment to reduce the risk of post-surgical infection. Ancef is the most commonly used antibiotic for that purpose. To the extent that [Cox's] claim in this lawsuit is based upon a belief that he was not given antibiotics at Highland, it is simply not supported by the evidence contained in his medical records."

Defendants also asserted, based upon Slabaugh's declaration and the deposition of Dr. Kanwaljit Singh Gill, a board certified orthopedic surgeon at Kaiser, that "[p]ost operative infections are a risk of all surgeries, and the potential for such a complication cannot be eliminated completely, regardless of the precautions taken"; that Cox's risk for infection was somewhat increased due to the fact he was diabetic; and that the type of surgery performed on Cox has a greater risk of infection than many other types of surgeries.

Cox disputed that the surgery was performed in a manner consistent with the standard of care "as to the administration of antibiotics." Cox argued there was "no record that any antibiotics were actually administered or administered in the proper number of doses." Cox relied for this statement on the physician's orders showing that Ancef was ordered, but containing no express notation that the drug had been administered, and upon a letter from his own counsel stating Cox's claim included a "failure to administer antibiotics, resulting in infection." Cox also disputed defendants' assertion that Ancef was appropriate and administered in accord with the standard of care. He maintained that there was no evidence that Ancef was the "antibiotic of choice for a patient suffering with insulin dependent type II [diabetes]" who was admitted with multiple open wounds.

Cox also disputed defendants' statement that "[p]ost-operative infections are a risk of all surgeries, and the potential for such a complication cannot be eliminated completely, regardless of the precautions taken," as to the last clause, "regardless of precautions taken." Cox argued the clause was argumentative and he further challenged Slabaugh's ability to opine as an expert witness on this matter on the ground that Slabaugh was not a specialist in infectious diseases who was competent to express such an opinion. Cox challenged defendants' statement that the fact he developed an infection after surgery is not evidence that the treatment he received did not conform to the standard of care. Cox objected to the statement as argumentative and without foundation, as well as on the basis it was an "impermissible opinion on a legal question as to what direct or circumstantial evidence is competent to prove the standard of care." Cox challenged defendants' statement that the infection did not develop until some time after June 15, 2006, and that there was no evidence it was caused by treatment he received at Highland. Cox stated there was evidence of infection as early as June 6, 2006, referring to his deposition testimony that he had severe pain soon after his follow-up appointment and a medical treatise stating that infection may be characterized by symptoms such as "fever, chills, nausea, vomiting," among others.

Cox maintained in his undisputed material fact statement that defendants did not screen him for the potential for infection when he was first admitted and did not advise him of the risk of post-operative infection. He further asserted that pain and nausea and vomiting may be evidence of the presence of infection and that, on June 6, 2006, he was nauseous and vomited twice. The health care professional he contacted advised him if the vomiting became persistent to go to the emergency room. When he noticed the brown stain oozing from the cast and the accompanying foul odor, he went to the emergency room at Highland. Highland refused to treat him and he left and went directly to Kaiser, where he was admitted and placed on antibiotics.

Cox also asserted the following, based upon exhibit Nos. 3 and 11 that were excluded by the court upon defendants' objections: After his admission to Kaiser, and during one surgery there, Cox's knee was found to be full of pus. The postoperative diagnosis was "infected hardware, right knee." In a later surgery at Kaiser, the metal plate and screws defendants implanted were removed from his knee. Kaiser cultured Cox's wound and the hardware in his right leg. The cultures were positive for pseudomonas aeruginosa and staph. captits infections.

Cox also stated as undisputed that the plate and screws defendants implanted in his leg are shipped by the manufacturer to defendants in a non-sterile condition. (Cox also asserted that the new long cast Dr. Justice put on his right leg at the follow-up visit fit too tightly, and that at the follow-up appointment, he was experiencing throbbing pain, which he rated on a level of 10 at the time. These assertions were not included in his supplemental statement of undisputed facts. Further, the deposition excerpt to which he refers does not state he felt severe pain at the follow-up appointment itself, and Cox's assertion that he had pain at the follow-up appointment--as opposed to afterward--is countered by his response to the defendants' separate statement of facts that it was "undisputed" that at the follow-up visit he reported that he was not having any pain.)

Cox filed a complaint for damages for medical malpractice against Slabaugh and Dr. Gregory Victorino on June 11, 2007. (Dr. Victorino was later dismissed from the case.) Following the trial court's granting of Cox's petition for relief from the claims presentation requirements of Government Code section 900 et seq., on July 10, 2007, Cox filed a first amended complaint, adding ACMC as a defendant on January 3, 2008.

ACMC demurred to the first amended complaint on the ground that Cox had failed to timely file it. (Gov. Code, § 946.6, subd. (f).) The trial court overruled the demurrer, holding that ACMC was estopped from arguing the first amended complaint was untimely. This court denied ACMC's subsequent petition for a writ of mandate to overturn this ruling. (Alameda County Medical Center v. Superior Court (Cox) (Apr. 1, 2008, A120969).)

Defendants answered the first amended complaint and then moved for summary judgment. Cox opposed summary judgment and, after a continuance to allow him to conduct further discovery, filed a second, "supplemental" opposition to the summary judgment motion. Defendants objected to much of Cox's evidence on a variety of grounds. The court sustained their objections to exhibit Nos. 2 through 11 and 13 on hearsay grounds. The court granted summary judgment in favor of defendants and dismissed the case against them.

In granting summary judgment for defendants, the court determined that defendants met their burden by providing expert testimony that showed defendants' conduct met the standard of care and did not cause Cox's injuries. The court also determined that Cox's claim that the implanted hardware caused the infection because it was not sterilized was not founded upon expert opinion testimony. The court rejected Cox's assertion of the doctrine of res ipsa loquitur, "because the accident must be of a kind, which ordinarily does not occur in the absence of someone's negligence." The court concluded that the infection could have been caused by any number of reasons, including unsterilized hardware, and that without an expert, defendants' expert opinion remained uncontroverted.

Judgment in favor of defendants and awarding them costs was entered on June 25, 2009. Cox timely appealed from the judgment.

DISCUSSION

I. Standard of Review

" 'A trial court properly grants a motion for summary judgment only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. [Citations.] The moving party bears the burden of showing the court that the plaintiff "has not established, and cannot reasonably expect to establish, a prima facie case . . . ." [Citation.]' [Citation.] '[O]nce a moving defendant has "shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established," the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff "may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . ." [Citations.]' [Citation.]" (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274.)

"Because this case comes before us after the trial court's grant of summary judgment, we apply these well-established rules: ' " '[W]e take the facts from the record that was before the trial court when it ruled on that motion . . . ,' " ' and we ' " ' " 'review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.' " ' " ' (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039, quoting Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201, 206.) We also ' " 'liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.' " ' (Ibid.)" (Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, 522.)

"We review the trial court's evidentiary rulings on summary judgment for abuse of discretion. [Citations.]" (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679.) The burden is upon Cox "to establish such an abuse, which we will find only if the trial court's order exceeds the bounds of reason. [Citation.]" (Ibid.)

II. Defendants Met Their Burden

Cox contends that there were material issues of fact as to whether defendants' negligence allowed his leg to become infected. He maintains that defendants failed to negate his theory of liability that defendants negligently implanted unsterilized surgical hardware in his right knee to repair it. He further contends that defendants did not offer evidence that antibiotics were actually administered in the proper number of doses before, during, or after the surgery. We disagree.

A. Slabaugh was an expert

Defendants' assertion that they met the standard of care in their treatment of Cox's injury, that appropriate antibiotics were given, and that infections occur regardless of the precautions taken were based upon Slabaugh's declaration and deposition testimony. Cox challenges Slabaugh's credentials to testify as an expert witness on the grounds that Slabaugh was not a specialist in infectious diseases who was competent to render such an opinion. Cox bases this challenge upon Slabaugh's acknowledgement that he was not a certified specialist in infectious diseases, had not specialized in that area, had not been a member of Highland's infectious disease committee, and could not list specific infectious disease training programs at the hospital, beyond stating that there were ongoing training sessions with regard to sterile technique in and out of the operating room and that he had participated in such sessions as an observer or a participant, but not as an instructor.

Slabaugh was board certified in orthopedics and had been the Chief of Orthopedic Surgery at ACMC for nearly 30 years. He had training as a resident in infectious diseases and had a rotation specifically on osteomyelitis or infection of bone. He testified that "the training in infectious disease is an ongoing one. In general, we deal with infection issues all the time, both as a presenting problem that patients have as well as a problem that evolves during the care of a patient. These problems are sometimes acute in nature and sometimes chronic in nature." Slabaugh also stated that as Chief of Orthopedic Surgery he was "regularly involved in issues concerning the operation and maintenance of the OR, including issues related to infection control and prevention." Slabaugh stated his opinions were based on his review of the Highland and Kaiser records, his background, training and experience in orthopedics, and further stated he was "personally familiar with the infection control practices of other hospitals as they relate to the surgical environment, and those employed at Highland conform to the standard of care."

We are convinced that defendants established Slabaugh's credentials as an expert witness with respect not only to the standard of care for treatment of orthopedic injuries, but also as to the risks of infection and as to possible causes of Cox's infection. The evidence also established Slabaugh as an expert as to the standard of care applicable to trauma centers such as Highland for treatment of such orthopedic injuries, including the standard of care relating to infection prevention.

B. Defendants' burden met

Defendants here presented evidence negating Cox's theory that defendants' treatment fell below the standard of care and that such professional negligence was a substantial factor in Cox's knee becoming infected. Cox's theory of the case was that the metal screws and plate implanted in his right knee were not sterilized and/or that he was not given appropriate antibiotics to prevent infection. Defendants presented expert testimony through Slabaugh that defendants' treatment met the standard of care with respect to prevention of infection. Although the screws and plates were shipped unsterilized, Slabaugh testified that the implant "comes non-sterile and is routinely sterilized, prepared on a case-by-case basis," and that the plate and screws would "[m]ost certainly" have been sterilized before they were implanted. The head nurse of the operating room would have had the responsibility for sterilizing these items in the surgical area of the hospital. Slabaugh also testified more generally that Highland has a comprehensive infection control program and that all employees working in and around the OR were trained in the most up to date methods for maintaining, using, sterilizing and storing equipment and supplies used in surgery, and for generally maintaining a sterile surgical environment. He testified he was "personally familiar with the infection control practices of other hospitals as they relate to the surgical environment, and those employed at Highland conform to the standard of care."

Significantly, Slabaugh testified with respect to the occurrence of the infection and its implications for the standard of care and causation issues that "[t]he precise relationship between the surgery and the infection is unclear, but post-operative infection is a recognized risk of any form of surgery, and some patients will develop post-operative infections despite the best efforts to prevent that from occurring. In general, the risk of infection is greater for ORIF of severe tibial plateau fractures. Additionally, Mr. Cox has type II diabetes, and patients with that condition are at greater risk of infections from all sources, including surgery. Regardless of the precautions taken before, during and after surgery, it is not possible to eliminate the potential for a post-operative infection, and the fact that Cox developed an infection is not evidence that the care rendered him at Highland did not conform to the standard of care." Dr. Gill, a Kaiser orthopedist who treated Cox for the infection, acknowledged at his deposition that post-operative infections are a risk of all surgeries; that Cox's risk for infection was somewhat increased due to the fact he was diabetic, and that the type of surgery performed on Cox has a greater risk of infection than many other types of surgeries; that post-operative infection can occur, even though one has taken all appropriate steps to prevent it; and the fact that a post-operative infection develops in a patient "does not mean that anything was done wrong."

Cox also based his malpractice claim on the assertion that the negligent failure to assess his risk for infection and the failure to give him antibiotics before, during, and after the surgery contributed to his injury. Slabaugh's testimony negated this theory, as he testified that the "Highland records clearly show that the patient was given an antibiotic called Ancef during and after his surgery, which is the standard protocol for prophylactic antibiotic treatment to reduce the risk of post-surgical infection. Ancef is the most commonly used antibiotic for that purpose." The surgical record confirms that Ancef was ordered. There was no medical evidence to support Cox's claim that he was not given antibiotics.

III. Cox's Burden--Expert Testimony as to Standard of Care and Causation Required

A. Expert testimony required

The burden then shifted to Cox to show the existence of a triable issue of material fact. Cox attempted to counter defendants' showing as to the standard of care and causation by arguing that the record did not definitively demonstrate that the screws and plate had been sterilized or that the ordered Ancef had actually been administered. Absent expert testimony, supporting his theories, Cox's assertions were insufficient to raise a triable issue of material fact.

As our Supreme Court reiterated in Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992 (Flowers): " ' "The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman." [Citations.]' [Citations.]" (Id. at p. 1001, quoting Landeros v. Flood (1976) 17 Cal.3d 399, 410; accord, Morton v. Thousand Oaks Surgical Hospital (2010) 187 Cal.App.4th 926, 935 & fn. 3; Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1542-1543.) Not only is expert testimony required to establish the standard of care, but also on the issue of "whether that standard was met or breached by the defendant, and whether any negligence by the defendant caused the plaintiff's damages. (Flowers, [at p.] 1001.)" (Scott v. Rayhrer, at p. 1542.)

B. Res ipsa loquitur inapplicable here

"The 'common knowledge' exception is principally limited to situations in which the plaintiff can invoke the doctrine of res ipsa loquitur, i.e., when a layperson '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.' (Engelking v. Carlson (1939) 13 Cal.2d 216, 221, disapproved on other grounds in Siverson v. Weber (1962) 57 Cal.2d 834, 836-837.) The classic example, of course, is the X-ray revealing a scalpel left in the patient's body following surgery. (See Engelking v. Carlson, supra, 13 Cal.2d at p. 221, and cases cited.) Otherwise, ' "expert evidence is conclusive and cannot be disregarded. [Citations.]" ' (Starr v. Mooslin (1971) 14 Cal.App.3d 988, 999, quoting Lysick v. Walcom (1968) 258 Cal.App.2d 136, 156.)" (Flowers, supra, 8 Cal.4th at p. 1001, fn. omitted.; accord, Scott v. Rayhrer, supra, 185 Cal.App.4th at pp. 1542-1543.)

" 'Res ipsa loquitur is a rule of evidence allowing an inference of negligence from proven facts. [Citations.] It is based on a theory of "probability" where there is no direct evidence of defendant's conduct, [citations], permitting a common sense inference of negligence from the happening of the accident. [Citations.] The rule thus assists plaintiffs in negligence cases in regard to the production of evidence. [¶] The applicability of the doctrine depends on whether it can be said the accident was probably the result of negligence by someone and defendant was probably the person who was responsible. [Citations.] In the absence of such probabilities, there is no basis for an inference of negligence serving to take the place of evidence of some specific negligent act or omission. [Citation.] [¶] A plaintiff must produce the following evidence in order to receive the benefit of the doctrine: 1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; 2) it must have been caused by an agency or instrumentality within the exclusive control of the defendant; and 3) the accident must not have been due to any voluntary action or contribution on the part of the plaintiff. [Citations.]' (Glicking v. Kimberlin (1985) 170 Cal.App.3d 73, 75-76.)" (Scott v. Rayhrer, supra, 185 Cal.App.4th at p. 1540.)

Since the doctrine of res ipsa loquitur permits the jury to infer negligence from the happening of the accident alone, " 'there must be a basis either in common experience or expert testimony that when such an [injury] occurs, it is more probably than not the result of negligence. [Citations.]' " (Scott v. Rayhrer, supra, 185 Cal.App.4th at pp. 1546-1547.) As recently noted in Morton v. Thousand Oaks Surgical Hospital, supra, 187 Cal.App.4th 926: "[W]hen a plaintiff relies on the presumption of res ipsa loquitur to raise an inference of negligence it is sufficient to show that the act complained of normally does not occur in the absence of negligence. [Citations.] In an action for medical malpractice, however, such a showing normally requires testimony from an expert to establish whether the medical condition would not occur absent someone's negligence. [Citation.]" (Id. at p. 935, fn. 3, italics added, citing Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 943.)

We are persuaded that the question whether the infection suffered by appellant here was probably the result of negligence is not a matter of common knowledge among laypersons. Therefore, expert testimony was necessary to determine whether a probability of negligence appears from the happening of the infection. (See, e.g., Tomei v. Henning (1967) 67 Cal.2d 319, 322; Scott v. Rayhrer, supra, 185 Cal.App.4th at pp. 1546-1547; Blackwell v. Hurst, supra, 46 Cal.App.4th at p. 944.)

The only expert witness testimony presented in connection with the summary judgment was by defendants, that their treatment conformed to the standard of care; that the precise relationship between the surgery and Cox's infection was unclear; that post-operative infections are a risk of all surgeries; that the risk of infection is elevated for the type of surgery conducted here and for patients like Cox who suffer from type II diabetes; that the potential for infection following surgery cannot be eliminated completely, regardless of the precautions taken; and that the fact Cox developed an infection was not evidence that the care rendered him by defendants did not conform to the standard of care. Absent expert testimony countering the above, or at the very least, expert testimony that post-operative infection would not usually occur without negligence on the part of defendants, Cox failed to rebut the showing made by defendants and, therefore, failed to carry his burden of showing that there existed a triable issue of material fact.*fn6

IV. Evidentiary Objections

Cox contends the trial court erroneously sustained defendants' objections to his documentary evidence. We disagree. The trial court sustained defendants' evidentiary objections to plaintiffs' exhibit Nos. 2 through 11 and 13 on hearsay grounds. However, Cox does not present argument on the admissibility of any of his exhibits except for exhibit No. 3 and exhibit No. 8. We are not required to discuss or consider points that are not argued or that are not supported by citation to authorities or to the record. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶¶ 8:17.1-8:17.2, 9:21, pp. 8-5 to 8.6, 9-6.) Hence, we limit our discussion to the court's sustaining of defendants' objections to exhibit Nos. 3 and 8.

Exhibit No. 3 consists of records from Kaiser Permanente Oakland Medical Center. The document describes the course of Cox's treatment at Kaiser after he developed the infection. Cox does not contend exhibit No. 3 was not hearsay evidence. Rather, he contends, without citing authority, that these records are admissible because they contain statements made by Gill, plaintiff's attending physician at Kaiser, who was deposed and testified to many of the statements in the medical record, and that had Gill been unavailable to testify as a witness, his deposition testimony would have been read to the jury. Cox maintains that these records constitute "statement[s] made in a writing by a witness when the fact occurred" and so were admissible under Evidence Code section 1237 as an exception to the hearsay rule for "past recollection recorded."*fn7

As it stands, exhibit No. 3 does not meet the requirements for admission under that section. No witness has testified that he or she made the statements in exhibit No. 3, but has "insufficient present recollection to enable him [or her] to testify fully and accurately . . . ." (Evid. Code, § 1237.) No witness has stated that any statement in the documents comprising exhibit No. 3 is true. Furthermore, no witness has properly authenticated the documents. (See Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 720.)*fn8 In addition, Evidence Code section 1237 does not allow the document itself to be received into evidence (as opposed to reading the document into evidence), unless offered by an "adverse party." (Evid. Code, § 1237, subd. (b).) Cox does not contend he is adverse to any potential Kaiser witness. Nor does Cox's assertion that exhibit No. 3 is admissible because it is referred to by Gill's deposition testimony suffice. That excerpted testimony nowhere authenticates exhibit No. 3. The court did not err in sustaining defendants' objection to exhibit No. 3.

Moreover, any error in that respect was necessarily harmless as the documents that comprise exhibit No. 3 are irrelevant to the issues on summary judgment, insofar as they address Cox's care at Kaiser after developing the infection. The only possibly relevant information is the statement of pre-operative and post-operative diagnoses of "infected hardware" in two reports. (Whether the hardware became infected before or after implantation, or whether it is possible to determine that information is not indicated.) None of the documents constitutes expert testimony and none addresses the standard of care, breach thereof by defendants, or whether defendants' allegedly substandard care was a substantial factor in appellant's injury.

Exhibit No. 8 is a March 1, 2007 letter, signed under penalty of perjury by Jeffrey L. Gao, M.D., of the Department of Occupational Medicine at Kaiser Vallejo, who treated plaintiff after his Kaiser surgery. The declaration/letter states it was prepared "under the guidelines of the California Division of Workers' Compensation as a final report for the purposes of rating as the primary treating physician." It was clearly hearsay as offered by an out-of-court witness for the truth of the matters asserted therein. (Evid. Code, § 1200.) Cox again contends, without citing authority, that the document is admissible on summary judgment because Gao would have been a witness at trial, and would have testified to the statements contained in this declaration and that such evidence would have been admissible at a trial of the matter. Neither Gao nor anyone else has authenticated this document, so it lacks foundation. Although the declaration contained information regarding Gao's observations of Cox's present condition, it also contained information about which Gao could not have personal knowledge, namely events occurring before he first saw Cox. (The letter indicates Gao first saw Cox in November 2006, long after Cox's surgery, later infection, and treatment of the infection at Kaiser.) Gao's statements regarding those events must be based on the statements of others, which are also hearsay. "Under our summary judgment statute, declarations must 'be made . . . on personal knowledge, . . . set forth admissible evidence, and . . . show affirmatively that the [declarant] is competent to testify to the matters stated in the affidavits or declarations.' (Code Civ. Proc., § 437c, subd. (d).)" (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1182, fn. omitted.) Again, Cox cites no legal authority to support the admissibility of exhibit No. 8. The objection was properly sustained.

Were we to determine the court erred in sustaining the objection to exhibit No. 8, Cox has failed to show that he was prejudiced. The only information contained in exhibit No. 8 that appears at all relevant to the issues on summary judgment is the statement that three weeks after Cox's discharge from Highland, a "new cast was fit on too tightly and resulted in an ulceration in his leg and subsequent infection . . . ." Gao could not have "personal knowledge" of this asserted fact. Moreover, the assertion that the second casting resulted in an ulceration that was a substantial factor in the subsequent infection was neither based upon nor supported by any expert witness testimony. As we have previously held, such expert testimony was essential to establish a triable issue of material fact in this case.

We conclude the trial court did not err in sustaining defendants' objections to exhibit Nos. 3 and 8, and that any error was necessarily harmless as the information contained in these documents was not relevant to the issues on summary judgment and any arguably relevant information was not supported by expert testimony.*fn9

DISPOSITION

The judgment is affirmed. Defendants shall recover their costs on this appeal.

We concur:

Haerle, J. Lambden, J.


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