In Lattimore v. Dickey (2015 S.O.S. 4448 – filed August 21, 2015), the California Court of Appeal for the Sixth District held that plaintiff’s expert physician’s declaration was insufficient to create a triable issue of material fact as to the standard of care applicable to nurses, hospitals or hospital employees.

Plaintiff brought a wrongful death action against a Gastroenterologist, a General Surgeon and a hospital arising from the care and treatment provided to decedent, a seventy-four year old male previously diagnosed with leukemia. Decedent was admitted to the hospital for a blood transfusion, but experienced gastrointestinal bleeding and died prior to undergoing recommended surgery.

The two physicians and the hospital filed three separate motions for summary judgment asserting that they each complied with the standard of care and did not cause or contribute to the death. Plaintiff filed oppositions to the three motions each supported by a declaration from her expert, the decedent’s Primary Care Physician, who declared that he was Board-Certified in Family Medicine and Emergency Medicine. The trial court granted all three defendants’ summary judgments and held that the plaintiff’s expert was not competent to testify and therefore did not raise a triable issue of fact as to any of the three defendants.

The Court of Appeal reversed in part finding that the plaintiff’s expert physician was qualified to opine on the standard of care applicable to the Gastroenterologist and General Surgeon. Given that plaintiff’s expert physician was Board Certified in Emergency Medicine, the Court held that liberal construction of his qualifications would raise a triable issue as to the standard of care required regarding patients who may be experiencing internal bleeding or are otherwise in need of immediate treatment.

However, the court affirmed the lower Court’s granting of the hospital’s motion for summary judgment finding that the plaintiff’s expert physician was not competent to testify as to the standard of care applicable to nurses, hospitals or hospital employees, other than physicians or surgeons, inasmuch as he did not present any relevant certifications, expertise, or knowledge.

Despite the determination that the plaintiff’s expert physician was qualified to testify as to the standard of care of the General Surgeon, the opinion regarding causation was rejected. The expert’s opinion that timely surgical intervention would have given the decedent “a chance of survival” was deemed insufficient under Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402. Only the claim against the Gastroenterologist was returned to the superior court for an order denying his motion.