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Borrayo v. Avery

California Court of Appeals, First District, First Division

August 10, 2016

Lidia C. BORRAYO, Plaintiff and Appellant,
v.
G. James AVERY, Defendant and Respondent.

         [205 Cal.Rptr.3d 826] San Francisco County Superior Court, Hon. Ernest Goldsmith. (San Francisco County Super. Ct. No. CGC12525769)

Page 305

[Copyrighted Material Omitted]

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         COUNSEL

         Law Offices of Michael E. Adams, Michael E. Adams, Redwood City, for Plaintiff and Appellant.

         Oium Reyen & Pryor, Virgil F. Pryor, Bret R. Landess, San Francisco, for Defendant and Respondent.

         OPINION

         DONDERO, J.

Page 307

          Plaintiff Lidia C. Borrayo sued defendant Dr. G. James Avery, alleging he had engaged in medical malpractice during the course of treating her for a condition known as thoracic outlet syndrome. Defendant moved for summary judgment, which the trial court granted after sustaining his objection to her sole expert witness¬ís declaration. On appeal, plaintiff argues that this expert witness, a physician licensed to practice medicine in Mexico, was qualified to provide an opinion about the standard of care to which defendant was held. We agree and reverse.

          FACTUAL BACKGROUND AND PROCEDURAL HISTORY

          A. Background

          For many years, plaintiff worked for eight to 10 hours a day in silk-screen production. The work involved repetitive motions such as pushing her right arm back and forth and lifting fabric up and down, producing 200 canvasses per day, each using three colors.

         On May 19 and 20, 2008, Dr. Abraham Castrejon Pineda, a physician licensed in Mexico, performed orthopedic examinations of plaintiff.

         On March 5, 2009, plaintiff sought treatment from defendant. At that time, she presented with long-standing complaints of intense pain in her right shoulder and scapula, numbness and swelling, painful grip, and weakness when raising her right elbow. After examining her and reviewing MRI results, defendant diagnosed her as [205 Cal.Rptr.3d 827] having severe thoracic outlet syndrome (TOS)[1] on the right side, secondary to repetitive stress at work. He recommended that she undergo surgery to rectify the condition.

          On September 4, 2009, defendant performed the recommended surgery on plaintiff. The surgery involved the removal of the right first rib. Plaintiff

Page 308

suffered adverse symptoms approximately 12 months following the surgery, including pain upon moving her right arm, as well ...


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