California Court of Appeal Nov 19, 2014 No. D064477Unpublished
Filed 11/19/14 Hammontree v. Segal CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DEVIN WESLEY JONES-HAMMONTREE, D064477 a Minor, etc.,
Plaintiff and Appellant, (Super. Ct. No. 37-2012-00100381- v. CU-MM-CTL)
DMITRI SEGAL,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Judith F.
Hayes, Judge. Affirmed.
Mark B. Simowitz for Plaintiff and Appellant.
Schmid & Voiles, Denise H. Greer, Kyle A. Cruse and Robert B. Fessinger for
Defendant and Respondent.
In establishing his medical malpractice claim, plaintiff and appellant Devin
Wesley Jones-Hammontree (Devin) had the burden of showing that, in treating him,
defendant and respondent Dr. Dmitri Segal, a radiologist, acted below the standard of
care and that Dr. Segal's error caused him some injury. Because, in response to Dr.
Segal's motion for summary judgment, Devin failed to meet that burden, we affirm the
trial court's judgment entered on an order granting Dr. Segal's motion.
In support of his motion for summary judgment, Dr. Segal submitted a declaration
from an expert who stated Dr. Segal did not act below the standard of care in reading X-
The principal issue we confront on appeal is the question of causation. In a
medical malpractice action, such as this, the plaintiff must be able to show that the
defendant acted below the applicable standard of care and that, in the absence of the
defendant's error, the plaintiff would not have suffered harm. "Liability for medical
malpractice is predicated upon a proximate causal connection between the negligent
conduct and the resulting injury. [Citation.] '[C]ausation must be proven within a
reasonable medical probability based upon competent expert testimony. Mere possibility
alone is insufficient to establish a prima facie case. [Citations.] That there is a
distinction between a reasonable medical "probability" and a medical "possibility" needs
little discussion. There can be many possible "causes," indeed, an infinite number of
circumstances 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.]" (Dumas v. Cooney
(1991) 235 Cal.App.3d 1593, 1603 (Dumas).)
In Dumas, the plaintiff alleged that his physicians had been negligent in failing to
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properly read a chest X-ray and that, as a consequence, they delayed in diagnosing the
presence of a malignant lung tumor. At trial, the physicians presented expert evidence
that tumors like the one found in the plaintiff are rarely curable, even if diagnosed at a
very early stage. In light of that evidence, the physicians argued that the delay in
diagnosis did not harm the plaintiff. The trial court gave the jury an instruction that
permitted the plaintiff to recover damages from the physicians if an earlier diagnosis
would have provided the plaintiff with the possibility of a cure, the possibility of a
lengthened life, or the possibility of more comfort. The jury returned a verdict in favor of
the plaintiff and, on appeal, the Court of Appeal reversed. The Court of Appeal found
that merely proving the possibility of a cure or lengthened life did not establish causation.
In rejecting the plaintiff's invitation that it adopt the so-called "lost chance" theory of
causation, the court stated: "'Relaxing the causation requirement might correct a
perceived unfairness to some plaintiffs who could prove the possibility that the medical
malpractice caused an injury but could not prove the probability of causation, but at the
same time could create an injustice. Health care providers could find themselves
defending cases simply because a patient fails to improve or where serious disease
processes are not arrested because another course of action could possibly bring a better
result. No other professional malpractice defendant carries this burden of liability
without the requirement that plaintiffs prove the alleged negligence probably rather than
possibly caused the injury. . . . We cannot approve the substitution of such an obvious
inequity for a perceived one.'" (Dumas, supra, 235 Cal.App.3d at p. 1608, italics added.)
III
Here, Dr. Segal's expert's declaration was sufficient to support a prima facie case
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in his favor both on the issues of standard of care and causation. As we have noted, Dr.
Segal's expert stated that, in reading the X-rays of Devin's elbow, Dr. Segal acted within
the standard of care in finding no acute fracture. Importantly, having found no breach of
the standard of care, the defense expert further found Dr. Segal's treatment did not cause
Devin any injury. Unchallenged, the defense expert's opinion would require a judgment
in Segal's favor because it defeats two elements of Devin's cause of action: breach of the
standard of care and causation. Thus, the defense expert's opinion shifted to Devin the
burden of proving that there is a triable issue of fact with respect to both of those
elements. (See Powell, supra, 151 Cal.App.4th at pp. 121-122.)
Devin's expert's opinion plainly conflicts with Segal's expert with respect to the
standard of care. Although Devin's expert did not find that the X-rays actually disclosed
any acute fractures, the expert did find possible fractures in two areas and a probable
fracture in another area. According to the expert, those possible and probable fractures
required that Devin's arm be immobilized until further diagnostic procedures could be
completed. Thus, Devin's expert found a breach of the standard of care in Segal's failure
to notice the possible and probable fracture, advise immobilization and conduct the
further diagnostic procedures. Arguably then, with respect to the standard of care,
Devin's expert created a triable issue of fact.
The failing in Devin's expert's opinion is with respect to the element of causation.
Devin's expert found causation only by assuming Devin's elbow was in fact fractured and
concluding that the failure to immobilize it caused the decrease in range of motion Devin
later experienced. However, contrary to Devin's argument on appeal, there is no evidence
in the record that will support an inference Devin's elbow was in fact ever fractured. As
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we have noted, Devin's expert only found abnormalities, which suggested the possibility
or probability of fractures and the need for follow-up diagnostic procedures. However,
Devin has not submitted any medical records from Kaiser or declarations from the
doctors who treated him there. Lowe's declaration itself is oddly silent with respect to
what the Kaiser doctors actually told her was wrong with Devin's elbow and the nature of
the surgery that was eventually performed on her son. This record does not tell us
whether Devin was treated for a fracture in his elbow or, as Dr. Luan suspected, an
injured tendon.
Although there is no evidence of any fracture in the form of either X-rays that
show a fracture or an expert diagnosis of a fracture, Devin nonetheless argues that based
on his mother's declaration, evidence of his continuing discomfort and loss of range of
motion, the possibilities and probability of fracture identified by his expert, and the fact
he later underwent surgery, a trier of fact could infer that he had suffered a fracture. We
are compelled to reject this argument. When any number of other conditions, including
the possibility identified by Dr. Luan of a torn tendon, might readily explain each of the
circumstances Devin relies on, a trier of fact would have to engage in impermissible
speculation to conclude that Devin had a fracture at the time Dr. Segal read the X-rays in
2008. (See Dumas, supra, 235 Cal.App.3d at p. 1603.)
We of course recognize that both in the trial court and on appeal, a plaintiff
opposing a motion for summary judgment is entitled to the benefit of the rule that "when
considering the declarations of the parties' experts, we liberally construe the declarations
for the plaintiff's experts and resolve any doubts as to the propriety of granting the motion
in favor of the plaintiff. [Citation.]" (Powell, supra, 151 Cal.App.4th at pp. 125-126, fn.
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omitted.) Were there any evidence in the record here that Devin had suffered a fracture
of his elbow in the areas of concern identified by his expert, this rule would plainly come
into play. Evidence of an actual fracture would permit a trier of fact to draw the
inference that, as suggested by Devin's expert, the failure to immobilize the arm in 2008
increased the harm Devin thereafter suffered. (See, e.g., Id. at pp. 128-129 [obtuse
declaration from the plaintiff's expert nonetheless sufficient to defeat summary judgment
where, under liberal construction, declaration sets forth theory of both treatment below
the standard and causation].) However, as we have discussed, there is simply no
evidence Devin suffered a fractured elbow. Without such evidence, even the most liberal
interpretation of his expert's declaration does not show that Segal's treatment caused
Devin any harm.
In sum then, the trial court did not err in granting Segal's motion for summary
judgment.
DISPOSITION
The judgment is affirmed. Dr. Segal to recover his costs of appeal.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
NARES, J. 12
AI Brief
AI-generated · verify before citing
Holding. The court held that the plaintiff failed to establish a triable issue of material fact regarding causation in a medical malpractice claim because there was no evidence the plaintiff actually suffered a fracture, rendering any conclusion of harm speculative.
Issues
Whether the defendant met the initial burden for summary judgment in a medical malpractice action.
Whether the plaintiff provided sufficient evidence of causation to survive summary judgment when the existence of the underlying injury was not established.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“In the absence of evidence Devin actually suffered a fracture, there is no basis upon which a reasonable trier of fact could conclude Dr. Segal's failure to find a fracture caused Devin any harm.”
“A trier of fact would have to engage in impermissible speculation to conclude that Devin had a fracture at the time Dr. Segal read the X-rays in 2008.”