Avivi v. Centro Medico Urgente Medical Center

LAW OFFICES
OF
ANDREA LYNN RICE
A Professional Corporation
12100 Wilshire Boulevard

Suite 780
Los Angeles, California 90025
Telephone (310) 207-3717
Facsimile (310) 207-6785

LIABILITY UPDATE
May 9, 2008

In Avivi v. Centro Medico Urgente Medical Center 2008 Daily Journal D.A.R 1609, the Second Appellate District of the California Court of Appeal held that the appropriate test for determining expert qualification in ordinary medical malpractice actions is whether the expert is familiar with circumstances similar to the subject incident; familiarity with the standard of care in the particular community where the alleged malpractice occurred, while relevant, is generally not required.

On September 5, 2004, while visiting the United States from Israel, Nurit Avivi injured her right hand and arm in a fall. At Centro Medico Urgente Medical Center, “physician assistants” (nonphysicians) set her arm in a splint and gave her pain medication. She returned to the medical center for follow-up examinations on September 6 and September 9. At these examinations, she complained about continued pain and swelling. The physician assistants gave her additional pain medication and instructed her to keep wearing the splint.

After she returned to Israel, plaintiff had her arm examined by an orthopedist, Dr. Arieh Arielli. Dr. Arielli observed that the fingers on her right hand were blue, cold and stiff. He concluded that defendants’ splint restricted the blood circulation in her right arm because it had been applied too tightly. He removed the splint and replaced it with a full cast. Dr. Arielli diagnosed plaintiff with a number of permanent injuries from the splinting of her arm.

On September 1, 2005, plaintiff brought a medical malpractice action against the medical center and Edward Rubin, M.D. (defamatory). Defendants moved for summary judgment. In support, defendants submitted the declaration of a surgeon who had practiced and taught hand surgery in the Los Angeles area for several years. According to defendants’ expert, defendants’ treatment of plaintiff was reasonable and within the standard of care in the local medical community. In opposition, plaintiff submitted the declaration of Dr. Arielli. Dr. Arielli stated he had treated thousands of fractures during his career, and had spoken with American doctors and reviewed American publications regarding the treatment of fractures in the United States. However, Dr. Arielli did not explicitly state that he was familiar with the local standard of medical care in the community where defendants treated plaintiff, and defendants objected to his declaration on that ground.

At the hearing on the summary judgment motion, the trial court ruled that Dr. Arielli’s opinion was not admissible because Dr. Arielli was not familiar with the standard of care in Southern California. Because Dr. Arielli’s was the only expert declaration plaintiff offered to dispute Dr. Lane’s declaration, the trial court ruled that plaintiff had failed to show the existence of a triable issue of fact as to defendants’ negligence and granted summary judgment. Plaintiff appealed, and the Court of Appeal reversed.

The appellate court observed that, in order to testify as an expert in a medical malpractice case, a person must have enough knowledge, learning and skill with the relevant subject to speak with authority, and he or she must be familiar with the standard of care to which the defendant was held. (Evid.Code, § 720, subd. (a); Ammon v. Superior Court (1988) 205 Cal.App.3d 783, 790-791.) An expert may base his or her opinion on any matter reasonably relied upon by experts in forming opinions about the particular subject matter in question, except when the law precludes consideration of a particular matter. (Evid.Code, § 801, subd. (b).) If the expert has disclosed sufficient knowledge of the subject to entitle his or her opinion to go to the jury, the court abuses its discretion by excluding his or her testimony. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 39.)

The trial court had excluded Dr. Arielli’s declaration because he did not demonstrate familiarity with the standard of care in Southern California. However, “[i]n 1949, the Supreme Court held that ‘[t]he essential factor’ in determining the qualification of an expert witness in medical malpractice cases ‘is knowledge of similarity of conditions; geographical proximity is only one factor to be considered.’ . . . Since then, the Supreme Court has formulated the standard of care as that of physicians in similar circumstances rather than similar locations. (See Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 108, fn. 1 . . .)”

The court’s review of the law showed that, except in cases where Health and Safety Code section 1799.110 applies; i.e., emergency room treatment, the standard of care for physicians is the reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. (Mann v. Cracchiolo, supra, 38 Cal.3d at p. 36.) “The test for determining familiarity with the standard of care is knowledge of similar conditions. . . . Geographical location may be a factor considered in making that determination, but, by itself, does not provide a practical basis for measuring similar circumstances.”

Dr. Arielli declared that he had practiced orthopedics for 27 years, had treated thousands of patients with injuries similar to [plaintiff’s], had numerous contacts with doctors from the United States regarding treatment of injuries similar to [plaintiff’s], had reviewed many publications on treatment of fractures in the United States, and that treating a fracture would be handled similarly in Israel as in the United States. Read in the light most favorable to [plaintiff], Dr. Arielli’s statements demonstrate that he was generally familiar with the standard of care for treating fractures in the United States, and with treating fractures in circumstances similar to [plaintiff’s]. It was not necessary that he also state familiarity with the standard of care in Southern California.

The appellate court concluded that, while the qualification of an expert witness requires exercise of trial court discretion, the court abused its discretion by denying qualification if the witness has demonstrated sufficient knowledge of the subject to entitle his or her opinion to go before the jury.

Because Dr. Arielli did so with respect to the treatment of fractures, the trial court improperly excluded his declaration in deciding whether plaintiff presented a triable issue of material fact. [¶] The exclusion of the sole expert relied upon by a party because of an erroneous view of his or her qualifications in a case where expert testimony is essential is an abuse of discretion, requiring reversal. . . . Here, the trial court relied on a test that has been outmoded for more than 50 years to exclude the sole expert relied upon by [plaintiff] at summary judgment. Because the court’s grant of summary judgment rested upon the exclusion of Dr. Arielli’s declaration, summary judgment was inappropriate.

----Andrea Lynn Rice