G. Simon Bachir v. William Etiz, D.O.

In a medical malpractice case, expert testimony is required unless the challenged conduct is within the common knowledge of laymen. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.)

California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence. [Citations.]

(Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985, internal quotation marks omitted (Munro).)

Dr. Etiz Meets His Initial Burden of Production

“'Negligence on the part of a physician or surgeon will not be presumed; it must be affirmatively proved.' [Citations.]” (Huffman v. Lindquist (1951) 37 Cal.2d 465, 474.) Physicians and surgeons must possess and exercise “that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.) In a medical malpractice action, the plaintiff must establish the following elements:

(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence. [Citations.]

(Hanson v. Grode (1999) 76 Cal.App.4th 601, 606, internal quotation marks omitted (Hanson).)

The parties agree on the need for expert testimony on summary judgment, as explained in Hanson:

“ ‘California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.’ [Citations.]” ([Munro, supra,] 215 Cal.App.3d [at pp.] 984–985.) “[E]xpert opinions ... are worth no more than the reasons and factual data upon which they are based.” [Citation.]

(Hanson, supra, 76 Cal.App.4th at p. 607.)

The court finds Dr. Etiz meets his initial burden of production. He offers the expert opinion of a competent physician, Steven Gayer, M.D., who is board certified in anesthesiology, to establish the nonexistence of any triable issue of material fact as to both the standard of care and causation. In his declaration, Dr. Gayer summarizes the documents he reviewed:

I have reviewed plaintiff’s medical records from Fresno Surgical Hospital, Eye Medical Center of Fresno, and UCSF Medical Center, as well as the deposition transcripts of plaintiff G. Simon Bachir and Molly Bachir. My review of these records has provided me a sufficient factual basis for me to form an opinion as to whether or not the care and treatment rendered to plaintiff by Dr. Etiz complied with the standard of care and caused or contributed to his injuries.

(Gayer decl., ¶ 3.)

Dr. Gayer then summarizes the pertinent factual chronology regarding Dr. Bashir's care and treatment, explains his reasoning, and opines that Dr. Etiz complied with the standard of care at all times:

I conclude to a reasonable degree of medical probability that Dr. Etiz did not cause or contribute to plaintiff’s eye injury. Subsequent records showed retinal detachment inferiorly and into the macula of the left eye. It is implausible that a peribulbar block with a short 5/8" needle could reach the anatomically remote retina. I therefore conclude that plaintiff’s eye injury is not attributable to Dr. Etiz’s administration of a peribulbar block as the needle for this anesthetic would not have reached the location of plaintiff’s eye injury.

(Gayer decl., ¶ 7.)

Where a defendant in a medical malpractice action presents expert testimony in support of a summary judgment motion showing that the defendant’s care and treatment did not fall below the standard of care, the burden shifts to the plaintiff to offer contrary expert testimony demonstrating that the defendant’s care and treatment did not fall below the standard of care. (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844 [affirming summary judgment in favor of treating physician where plaintiff failed to offer opinion evidence to contradict defendant's expert declarations on standard of care].)

Based on this showing, Dr. Etiz meets his initial burden of production to disprove two essential elements of the claim for medical negligence—breach and causation. The burden then shifts to plaintiffs to show the existence of a triable issue of material fact.

Plaintiffs Raise a Triable Issue of Material Fact

The moving papers in favor of summary judgment are strictly construed, while the opposing papers are liberally construed, "and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion." (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20; Aguilar, supra, 25 Cal.4th at pp. 850, 856.) "Because of the severity of the consequences of summary judgment, we carefully scrutinize the moving party's papers and resolve all doubts regarding the existence of material, triable issues of fact in favor of the party opposing the motion. [Citation.]" (Connelly v. County of Fresno (2006) 146 Cal.App.4th 29, 36.)

On summary judgment, opposing declarations are liberally construed, while the moving party’s evidence is strictly construed. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) “The rule that a trial court must liberally construe the evidence submitted in opposition to a summary judgment motion applies in ruling on both the admissibility of expert testimony and its sufficiency to create a triable issue of fact.” (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 189.)

Plaintiffs first ask the court to exclude Dr. Gayer's declaration because the Fresno Surgical Hospital records attached to the declaration of Dr. Etiz's counsel as exhibit A do not include a custodian of records declaration. Evidence Code section 1414 provides:

A writing may be authenticated by evidence that: (a) The party against whom it is offered has at any time admitted its authenticity; or (b) The writing has been acted upon as authentic by the party against whom it is offered.

Dr. Etiz cites Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, where the court held that a party cannot object to evidence while simultaneously relying on that same evidence.

Here, plaintiffs rely upon the same Fresno Surgical Hospital records that they object to (plus a proper custodian affidavit), which cures the defect. (Evid.Code, § 1414; Ambriz v. Kelegian, supra, 146 Cal.App.4th at p. 1527 [opposing party authenticated writing by relying on same evidence; “[r]aising an objection as to lack of authentication of an excerpt from the same deposition defendants themselves relied upon in their motion is disingenuous”].) The court finds the evidence relied upon by Dr. Gayer is sufficiently authenticated.

In their substantive opposition to the summary judgment motion, plaintiffs submit the expert declaration of Richard J. Novak, M.D., a board certified anesthesiologist. To reach his conclusions, Dr. Novak reviewed Dr. Bachir's medical records from Fresno Surgical Hospital, the follow-up records from UCSF Medical Center, the deposition transcripts of Dr. Bachir and Dr. Etiz, and all of the moving papers for summary judgment.

Dr. Novak notes a conflict in the record about whether a retrobulbar block or a peribulbar block was actually used, but opines that neither option was appropriate and neither option met the standard of care. Dr. Novak specifically disagrees with Dr. Gayer's conclusions, and suggests not only that the option for anesthetic used by Dr. Etiz was inappropriate in California, but also that the use of either option could have caused Dr. Bashir's eye injury.

Liberally construing the complaint and Dr. Novak's declaration, the court finds fact number seven (Dr. Etiz's care and treatment of Dr. Bachir complied with the standard of care at all times) is material and disputed. Therefore, the court finds plaintiffs raise a triable issue of material fact as to standard of care and causation.

In their reply, the moving defendants argue plaintiffs fail to meet their burden to raise a triable issue of material fact because plaintiffs' expert does not explicitly opine

that a 5/8" needle caused or could have caused the alleged retinal detachment or any of Dr. Bachir's injuries.

The moving defendants fail to cite Powell v. Kleinman (2007) 151 Cal.App.4th 112, where the Court of Appeal, Fifth District, on summary judgment, stated that while a defendant's expert's declaration has to be detailed and with foundation in order to obtain a summary judgment, a plaintiff's expert's declaration in opposition to a summary judgment motion does not have to be detailed and is entitled to all favorable inferences. (Id. at p. 125.) The Powell court found that when the expert doctor's declaration was given all favorable inferences, it contained an explanation as to causation.

Since it disclosed the existence of a triable issue of fact, the expert opinion precluded summary judgment based on the issues of breach of the duty of care and causation, and the appellate court reversed the summary judgment. (Powell, supra, 151 Cal.App.4th at pp. 130-131.) The appellate court found even "obtuse" declarations are sufficient to oppose a summary judgment motion:

However obtuse [the expert's] declaration may appear, as a party opposing summary judgment, [the plaintiff] is entitled to all favorable inferences that reasonably may be derived from it, which includes a reading of the declaration to state that [the plaintiff's] injuries were caused by [the defendant doctor's] conduct, which conduct fell below the applicable standard of care.

(Id. at p. 129, italics original.)

On balance, the court finds that Dr. Novak's declaration raises a triable issue of material fact as to standard of care and causation. Therefore, the court denies the motion by Dr. Etiz and Anesthesia Consultants of Fresno for summary judgment.

Plaintiff's Evidentiary Objections

The court overrules plaintiffs' evidentiary objections.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 07/27/26. (Judge’s initials) (Date)

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