Judge: Craig Griffin, Case: Franco v. Chebil et al, Date: 2022-08-29 Tentative Ruling

The Motion for Summary Judgment filed on 5/20/22 by Defendants Alexandra Chebil, M.D. and The Lasik Center Medical Group, Inc. (here the “Defendants”), as to the Complaint filed on 7/21/21 by Plaintiff Ricardo Franco (“Plaintiff”), is DENIED. 

The first of Plaintiff’s four causes of action is a claim for medical negligence. On a medical negligence claim, when a defendant moves for summary judgment and supports the motion with expert declarations that his/her conduct fell within the community standard of care, he/she is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.) Regarding causation, the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause-in-fact of the plaintiff's injury. (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 781.)

Here, Defendants met their initial burden through the Declaration of Dr. Macy, who opined that the care and treatment rendered by Defendants to Plaintiff was within the standard of care, and to a reasonable degree of medical probability, was not the cause of his claimed injuries.  The burden thus shifts to Plaintiff.

But Plaintiff has met that burden. The Lefkowitz Decl. states that the care and treatment rendered was below the standard of care under the circumstances, and that to a reasonable degree of medical probability, the surgery caused his condition to worsen. (ROA 40 at ¶¶ 6-12.)  The Reply argues that this  evidence may not be considered as the requirements of Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741-742 are not met.  But an opposing expert need not submit evidence already before the court in connection with the moving party's papers. (Shugart v. Regents of Univ. of Calif. (2011) 199 Cal.App.4th 499, 505-506.)  And Dr. Lefkowitz asserts that the Macy Declaration and medical history were considered. The Court has thus considered the Lefkowitz Decl. here. Based thereon, as the opposition has presented a triable issue of fact as to the first cause of action (see UF 16), this Motion must be DENIED.

Defendants’ evidentiary objections, filed with the Reply, as to the Nallely Franco Declaration, are OVERRULED; as to the  Lefkowitz Decl., Obj. No 1 is SUSTAINED [foundation, speculation] but otherwise OVERRULED.

Counsel for Defendants to give notice.