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Garcia v. San Antonio Community Hospital11/6/2002
es which can produce an injury or disease. 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. [Citation.]" (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403.)
In this case, the nurses told the mother to tell the doctor if the condition persisted, and she claims she did. Thus, it cannot be said that the eventual bowel perforation was more likely than not the result of the nurses' failure to inform the doctor prior to discharge. There is no indication that the slight delay occasioned by the nurses' conduct contributed in any substantial way to the bowel perforation, which only appeared to have occurred around the fifth or sixth day.
3. Doctor's Liability
Plaintiff also contends that the doctor was not entitled to summary judgment. We agree, concluding that there are relevant factual disputes.
First, regarding the standard of care, we have been repeatedly reminded that an expert's opinion is only as good as the facts upon which it is based. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607; Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523-524.) In this case, the doctor's expert based his opinion that the doctor acted within the standard of care on the doctor's allegation that he was merely informed that plaintiff had not passed stool since being discharged from the hospital. However, in her deposition, the mother claimed that she explained to the doctor that plaintiff had never passed stool since birth. Thus, we have a relevant factual dispute that calls into question the doctor's expert's opinion and prevents summary judgment.
Second, regarding causation, the doctor's expert merely opined that plaintiff would have been required to undergo corrective surgery regardless of the doctor's conduct because Hirschprung's disease is genetic. However, plaintiff does not seek recovery for the Hirschprung's disease or the necessary corrective surgery, which were admittedly not the fault of anyone; rather, plaintiff merely seeks recovery for the perforated bowel and all the attendant complications, including an additional surgical procedure to repair the perforation and several months of hospitalization to recover from the illness. The doctor's expert never addressed whether the doctor's conduct contributed to the perforated bowel and attendant complications. As a result, the doctor never shifted the burden of proof to plaintiff on this issue.
Lastly, the doctor argues that plaintiff's expert declaration is deficient for various reasons, including that it is too conclusory and fails to apply the correct legal standards. As previously discussed, the doctor's expert failed to address the relevant facts and issues; therefore, plaintiff was not required to produce any contrary expert declarations, let alone adequate ones. Furthermore, if we were to find the plaintiff's declaration to be inadequate, we would have to do the same with the doctor's declaration, which was no more detailed then plaintiff's declaration.
Disposition
The judgment is affirmed as to the hospital and reversed as to the doctor. Plaintiff is required to pay the hospital's costs, but may recover his separate costs from the doctor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur:
Richli J.
Ward J.
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