Lowery v. Kindred Healthcare Operating, Inc. (May 18, 2020, A153421) __ Cal.App.5th __ [2020 WL 2520173]

Conclusory expert declaration that lacks foundation does not create a triable issue regarding causation.

Ruth Goros sued Kindred Healthcare, which operated the nursing home where she lived, for failing to provide timely treatment after she suffered a stroke. Goros argued that Kindred’s negligence caused her “permanent and irreversible [and eventually fatal] brain damage.” Kindred moved for summary judgment as to causation, supporting its motion with a neurologist’s declaration that Kindred’s conduct was unrelated to Goros’s injuries. According to Kindred, due to significant medical co-morbidities, “medical intervention to reverse the stroke was not medically possible.” Goros opposed summary judgment with a declaration from Dr. Lawrence Miller, an “expert in physical medicine, rehabilitation, geriatrics, and pain disorders.” He declared that timely medical intervention to dissolve Goros’ blood clot “would have provided the opportunity to have the effects of the stroke dramatically reduced and the severity of the stroke would not have contributed to the cause of her death like it did in this instance.” The trial court sustained Kindred’s objection to Dr. Miller’s declaration, ruling that he was not qualified to testify about the cause or treatment of Goros’s injury.

The Court of Appeal affirmed, holding that the trial court properly followed Sargon Enterprises, Inc. v. University of Southern California (2012) 66 Cal.4th 747 (Sargon)to exclude Dr. Miller’s declaration. The court explained that Dr. Miller’s “vague reliance on ‘documented medical literature’ ” for his “conclusory” opinion was inadequate. The court further held Goros “failed to show that Dr. Miller’s qualifications extend to the specific [neurological] opinions he expressed here.” Finally, the court rejected Goros’s argument that she should have been permitted to submit a supplemental declaration establishing the missing foundation for Dr. Miller’s opinion, both because she never requested leave to do so and because she had adequate time to prepare her opposition.

[Editors’ Note: It appears that Dr. Miller’s opinion about a missed “opportunity” to reduce the effects of the stroke was flawed in another, unmentioned respect. It rested on the “lost chance theory of causation” that has “been uniformly rejected in California ‘as contrary to sound logic, legal precedent[,] and public policy.’ ” (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 134-135; accord, Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1504, 1506-1508; Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1608-1611.) “[T]here exists an obvious distinction between a reasonable medical probability and a medical possibility. [Citation.] There can be many, even an infinite number of, possible circumstances which can produce an injury. But a ‘possible cause only becomes “probable” when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.’ ” (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 702, citing Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 403; see generally Watson, Determining Whether Medical Causation Is Established Using Statistical Analysis [horvitzlevy.com] (Feb. 2010) Law Journal Newsletters; Perrochet, Smith & Colella, Lost Chance Recovery and the Folly of Expanding Medical Malpractice Liability [horvitzlevy.com](1992) 27 Tort & Ins. L.J. 615.)]

The bulletin describing the Court of Appeal’s decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy LLP, and is republished with permission.

For more information regarding this bulletin, please contact H. Thomas Watson, Horvitz & Levy LLP, at 818-995-0800 or htwatson@horvitzlevy.com.