Medical expert’s affidavit in opposition to summary judgment fails to establish a triable issue on causation because it is “purely conclusory”

This case points up the extreme care and attention to detail that a plaintiff’s attorney must exercise in reviewing an expert’s affidavit in opposition to summary judgment.  The case is Fernandez v. Alexander (Calif. Ct. of Appeal, 2nd Div., 1/28/2019),  The plaintiff was referred to the defendant, an orthopedic hand surgeon, for treatment of a displaced fracture of the left wrist.  The options were surgery and casting; the defendant recommended the latter.  When the cast was removed, the plaintiff’s hand was deformed (dorsal angulation).  The plaintiff claimed that the defendant should have recommended surgery and that casting caused the deformity to be significantly worse than it would otherwise have been.

The defendant moved for summary judgment.  The affidavit of the defendant’s expert opined that casting and surgery were equally acceptable treatments under the standard of care.  He further opined that “nothing [defendant] did or failed to do caused plaintiff any harm or injury.  The callous formation and dorsal angulation of the patient’s hand…was a potential outcome of both casting and/or surgical intervention.”

The plaintiff’s expert’s affidavit in opposition opined that “the standard of care required [defendant] to discuss and recommend surgical intervention for the open repair with internal fixation [ORIF] of the left wrist to correct the displacement,” and therefore the defendant breached the standard of care by recommending casting.  Thus, the plaintiff established a triable issue of material fact on the standard of care issue.  But the trial court ruled, and the court of appeal agreed, that the affidavit fell short on the issue of causation:

[W]hen an expert’s opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value…. 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.  On the causation issue, [the plaintiff’s expert] simply stated that, based on the records and his training and experience, his opinion, based on a reasonable degree of medical probability, was that defendant’s care and treatment “caused Plaintiff’s further deformity of her left wrist.”   Notably, [the plaintiff’s expert] does not opine that surgery would have produced a better outcome.  [He] does not challenge or even address [the defense expert’s] opinion that what happened to plaintiff’s hand (the callous formation and dorsal angulation) was a potential outcome of both treatments.  In short, he offered no reasoned explanation connecting the factual predicates to the ultimate conclusion, and that is the very definition of a purely conclusory opinion.  (Internal quotation marks and citations omitted; emphasis added.)

I don’t know whether what’s involved here is careless drafting of the affidavit or careless editing, or if the plaintiff’s expert was simply unwilling to provide the necessary opinion on causation (that surgery would probably have resulted in a better outcome) and the attorney had no choice but to take a chance with the best language he could get from the expert.  One wonders, though, why the plaintiff’s expert would be reluctant to say that surgery would probably have produced a better outcome, when he had no hesitation in saying straightforwardly that the standard of care required the defendant to recommend surgery. 


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